Robert Grace Contracting Co. v. Norfolk & Western Ry. Co.

• Decision Date: 07 January 1918
• Docket Number: 127
• Citation: 259 Pa. 241,102 A. 956
• Parties: Robert Grace Contracting Company, Appellant, v. Norfolk & Western Railway Company
• Court: Pennsylvania Supreme Court

102 A. 956

259 Pa. 241

Robert Grace Contracting Company, Appellant, v. Norfolk & Western Railway Company

No. 127

Supreme Court of Pennsylvania

January 7, 1918

Argued October 12, 1917

Appeal, No. 127, Oct. T., 1917, by plaintiff, from judgment of C.P. Allegheny Co., Oct. T., 1916, No. 625, entered for want of a sufficient statement of claim in case of Robert Grace Contracting Company v. Norfolk & Western Railway Company. Affirmed.

Assumpsit on quantum meruit based on alleged verbal agreement to complete at an earlier date work being done under written contracts. Before SHAFER, P.J.

The facts appear by the opinion of the Supreme Court.

Defendant filed an affidavit of defense in the nature of a demurrer under the Practice Act of May 14, 1915, P.L. 483.

The lower court entered judgment for the defendant. Plaintiff appealed.

Error assigned, among others, was in entering judgment for the defendant.

The assignments of error are overruled and the judgment is affirmed.

William Watson Smith, of Gordon & Smith, for appellant. -- The advancing of the time for the completion of the work necessitating a change of method in doing the work and consequent increased expense, entitles plaintiff to recover a reasonable value of such increased cost: Edmundson v Pittsburgh School District, 248 Pa. 559; Malone v. Philadelphia & Reading R.R., 157 Pa. 430; Vicary v. Moore, 2 Watts 451; Reber v. Brownback, 27 Pa.Super. 471; Salt Lake City v. Smith, 104 Fed. Repr. 457; Somerset Borough v. Ott, 207 Pa. 539.

Richard H. Hawkins, of Dalzell, Fisher & Hawkins, with him Theodore W. Reath, for appellee. -- The alleged modification of the original written contracts changed them only in respect to the time of the completion of the work and did not alter the provisions thereof requiring the engineer's certificate for work done and for extra compensation. The plaintiff is therefore not entitled to recover: McGrann v. The North Lebanon Railroad Co., 29 Pa. 82; O'Reilly v. Kerns, 52 Pa. 214.

The statement of claim exhibits the original contracts of writing which were the basis of the work, and which make the decision of the chief engineer upon any controversy final and a condition precedent to payments for the work, and as the statement fails to allege an award by, or fraud on the part of the chief engineer, it discloses no cause of action: Adinolfi v. Hazlett, 242 Pa. 25; McManus v. Philadelphia, 201 Pa. 632; Werneberg v. Pittsburgh, 210 Pa. 267; Jonathan Clark & Sons Company v. Pittsburgh, 217 Pa. 46.

The case was properly decided upon demurrer: Rosenblum v. Stolzenberg, 36 Pa.Super. 644; Martinsburg & Potomac Railroad Company v. March, 114 U.S. 549.

The legal effect of writings which are exhibited with pleadings is a question of law and cannot be controlled by contradictory averments in the pleading itself: Leechburg Building & Loan Association v. Kinter, 233 Pa. 354.

Before MESTREZAT, POTTER, STEWART, MOSCHZISKER and WALLING, JJ.

OPINION

MR. JUSTICE WALLING:

This is an action of assumpsit to recover a balance alleged to be due for railroad construction.

Defendant is a Virginia railroad company and plaintiff is a Pennsylvania construction corporation. In the spring of 1915 defendant awarded plaintiff contracts for the construction of two sections of railroad bed in Virginia. One of the contracts bears date of March 31st and the other April 8, 1915. Each contract calls for the completion of the work on or before December 1st of that year. The contracts are alike in form, except as to date and reference to the subject-matter, and are very exhaustive, each covering forty-eight printed pages. The entire work was placed under the control and supervision of defendant's chief engineer. As the work progressed, plaintiff was to be paid monthly eighty-five per cent. of the engineer's estimates and balance on completion. The contracts provide, inter alia, that "All questions, differences, or controversies, which may arise between the parties hereto in regard to any work to be done under this agreement, whether as to its performance or nonperformance, or in any way whatever pertaining to or connected with the said work, shall be referred to the said chief engineer and his decision shall be in the nature of an award, and shall be final and conclusive upon both parties, unless the same shall be reversed or modified by the president of the company, upon appeal by either party; and compliance on the part of the contractor with every such decision of the chief engineer shall be a condition precedent to the right to receive any payment hereunder. This contract, and every provision thereof, may be modified or extended by the mutual agreement of the parties hereto, subject only to the approval of the company." And, further, that the final estimate of the chief engineer shall be conclusive upon the parties unless modified by the defendant's president on appeal. So far as appears all of the work was completed, accepted and paid for as required in the contracts. In fact the work under one of the contracts was completed on the day called for, to wit, December 1, 1915, and the other a week in advance thereof. Plaintiff's statement in this case, however, makes no claim on these contracts but sets up an alleged verbal agreement, made during the progress of the work and confirmed by letters, which it avers superseded the originals. The change alleged was for a completion of the work at an earlier date, to wit, under one contract by October 7th and under the other by November 7, 1915; and providing for double shift work, etc., to bring about that result. Plaintiff avers that this change greatly increased the cost of the work, and, as no price was fixed by the new agreement, claims on a quantum meruit for all work thereafter done, making a balance of $62,237.20, after crediting the amount received according to the provisions of the old contracts. Plaintiff also avers that about the time of beginning work under the new agreement, and from time to time thereafter, it gave notice to defendant that it would expect to receive additional compensation therefor; and that such notices were received by defendant without protest being made thereto, until long after the completion of the work. It further avers that by reason of certain specified defaults on part of defendant, the plaintiff was entitled to approximately a month and a half additional time in which to complete the work.

The defendant filed an affidavit of defense, raising questions of law only, in accordance with Section 20 of the Practice Act of May 14, 1915, P.L. 483-486. This was in effect a demurrer to plaintiff's statement, and, after hearing thereon, the court below filed an opinion and entered judgment for the defendant; from which plaintiff took this appeal. The practice accords with the statute and the conclusion of the lower court seems free from error. Being a demurrer plaintiff's statement must be self-sustaining and set out a good cause of action. The only claim here made is on a quantum meruit to recover for the value of the work as done, on the theory that the original contracts had been abrogated. It is not a suit for extra work, or for extra pay because of force or double-shift work, or for damages for delay caused by defendant's default. It ignores the original contracts, while properly setting out copies thereof, and sues for the value of the work as if no price had ever been fixed. This in our opinion cannot be done. The new...