Zimmerman v. Marymor

• Decision Date: 25 June 1927
• Docket Number: 166
• Citation: 138 A. 824,290 Pa. 299
• Parties: Zimmerman, Appellant, v. Marymor et al
• Court: Pennsylvania Supreme Court

138 A. 824

290 Pa. 299

Zimmerman, Appellant, v. Marymor et al

No. 166

Supreme Court of Pennsylvania

June 25, 1927

Argued May 12, 1927

Appeal, No. 166, Jan. T., 1927, by plaintiff, from judgment of C.P. No. 1, Phila. Co., March T., 1924, No. 327, on verdict for defendants, in case of Benjamin D. Zimmerman trading as Zimmerman Construction Co. v. Nora Marymor et al. Affirmed.

Assumpsit on building contract. Before BARTLETT, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for defendants. Plaintiff appealed.

Error assigned, inter alia, was refusal of binding instructions for plaintiff, quoting record.

The judgment is affirmed.

W Horace Hepburn, Jr., for appellant, cited: Payne v. Roberts, 214 Pa. 568; Adinolfi v. Hazlett, 242 Pa. 25; Thaler Bros. v. Construction Co., 229 Pa. 512.

Paul Reilly, for appellees, cited: Kann v. Bennett, 234 Pa. 12; Murphy v. Orne, 185 Pa. 250; Chandley Bros. v. Boro., 200 Pa. 230; Lauman v. Young, 31 Pa. 306; Somerset Boro. v. Ott, 207 Pa. 539; Hunn v. Institute, 221 Pa. 403; Ruch v. York, 233 Pa. 36.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

This action is in assumpsit on a building contract. On August 24, 1923, plaintiff entered into a written contract with defendants agreeing to furnish all material and labor to erect for them six one-story brick stores at Thirty-fourth and Hamilton Streets, Philadelphia, for the consideration of $11,200. The material to be of the best quality of its kind and the work to be done in the most substantial and thoroughly workmanlike manner and to be completed by January 1, 1924, with a penalty of $15 a day as liquidated damages for delay. The work to be done under the supervision of William L. Charr, architect, and payments to be made on his certificates as the different parts of the buildings were finished. At the completion, the balance of $5,200 was to be paid $500 in cash and a four months' note for $4,700. The contract provided, inter alia, as follows: "that before the said last payment of $500, and the said note is delivered to the contractor, the contractor shall first furnish a full release of mechanics' liens to the owners as hereinafter set forth, and provided, further, that no payments are to be made by the owners unless and until the architect in writing certifies a satisfactory completion of the work for which payment is requested, provided, further, that no certificate given or payment made under this contract, except a final certificate or final payment shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials." To assist the contractor, prior payments, amounting to $6,000, were made on the architect's certificates before the work respectively calling for them was completed. The last certificate given by the architect was as follows:

"$5,200

January 26, 1924.

. . . To Nora Marymor and Otto Mish

"This is to certify, that Zimmerman Construction Company, Contractor for the six one-story stores of Nora Marymor and Otto Mish is entitled to a payment of fifty two hundred dollars divided five hundred cash and judgment note for balance payable within four months from date, by the terms of contract.

"William L. Charr, Architect.

. . . Remarks: This voucher is for final payment for building of six stores at N.E. Cor. 34th & Hamilton Streets." The suit is based on this certificate, which defendants refused to honor.

Defendants' evidence tended strongly to show that much of the work was so defectively done as to be worthless; that the cellars were less than the required depth; that the brick work was uneven and out of plumb and laid in mortar which was scarcely more than wet sand; that the carpenter and mill work were done but little better and that the roofs were so defective as to admit water in quantities to destroy the plaster and undermine the walls, some of which fell before the job was done. Other defects not necessary to mention were pointed out and as a matter of fact defendants employed a new architect and let a new contract to other parties to complete the buildings at an expense of $4,200, which, with the delay, etc., caused defendants a loss exceeding plaintiff's claim.

Plaintiff's claim found support in his own testimony and in that of the architect; but the latter admitted the work, as shown by photographs taken a week after the date of his last certificate, disclosed defective work, but claimed the buildings had been tampered with meantime, of which there was no proof. The evidence for plaintiff attributed the falling of the walls to undermining done by a third party while placing tanks in the basements. The evidence was...