Opinion by
Mr. Justice Simpson,
It is conceded that the written agreement involved in this case relates, as did that in Com. ex rel. v. NelsonPedley Construction Co., 303 Pa. 174, to work to be done in the construction, for the Commonwealth, of the first part of what is known as “South Office Building No. 2 in Capitol Park at Harrisburg,” and that the two contracts, including therein the various other writings made part thereof, differ only in the names of the contractors, the consideration to be paid, and the character of the work to be done. Every point made in the argument of this case inhered in and was also made in the Nelson-Pedley Construction Company case; some, it is true, were urged more strenuously here than they were there, and some of those argued there were not presented here. It is clear, therefore, that what is now before us is a reargument of some of the points decided on that appeal, and, in this light, we have most carefully reviewed that opinion. We cannot, however, despite the interesting and elaborate argument for appellee, reach any other conclusion than as there expressed.
It is earnestly contended that our prior opinion did not properly construe section 37 of the general conditions of the contract, partially because we ignored the word “alone” in the second sentence, which, it is contended, qualified the language of the one immediately preceding. We did not, however, base our conclusion as to the contractor’s liability on that section alone, but on a consideration of the whole contract. Appellee’s contention would be clearly erroneous, however, even if only that section were to be considered. It provides that “The [contractor’s] work in every respect, from the exe
cution of the contract bond and during its progress until final acceptance, shall be under the charge and in the care of the contractor and at his risk. He shall properly safeguard against any and all injury or damage to the public, [and] to any property, material, or thing, except where stipulated otherwise in the specifications, and shall alone be responsible for any such damage or injury from his undertaking of this work to any person or persons or thing connected therewith.”
We did not assert in our earlier opinion, nor could we have done so properly, that the word “risk” in the first sentence refers to fire risk only. It refers to any and every kind of risk to which such work is liable, before its final acceptance by the Commonwealth; the risk of the materials being stolen before or after delivery on the premises, or being injured, no matter from what cause, before or after they are incorporated in the building, etc., etc. This is a necessary conclusion from the fact that “the work in every respect......shall be under the charge and in the care of the contractor and at his risk,” “during its progress and until final acceptance,” and hence he must bear whatever loss results thereto before such acceptance. Any attempt of the Commonwealth to interfere with that work — save as specifically authorized by other provisions — would be a breach of appellee’s contractual rights, and might justify a rescission of the contract.
This conclusion is not affected by the second sentence above quoted. It does not pretend to cut down what was stated in the first sentence; on the contrary, it more specifically expresses the contractor’s duty and declares that he “shall alone be responsible” for any breach thereof. If we were to sustain his contention, he would not “alone be responsible,” but responsibility would be cast on the Commonwealth at least partially. This second sentence directly expresses a duty to do certain things, and imposes a liability on the contractor if he does not do them, and this is so whether the words
“from Ms undertaking of tMs work” mean, as the preceding sentence would seem to imply, from the time of Ms undertaking it, or mean only the fact of Ms undertaking it. We may concede also, as appellee contends, that one of the “purposes of the paragraph was to clearly set forth that the defendant was an independent contractor and to establish his liability as such”; not his liability under other circumstances, however, but his liability on each contract as fixed and determined thereby, when read and considered in its entirety.
There being no language in the second sentence expressing an intention of relieving appellee from any liability which he had previously assumed, its proper construction falls within the general rule that where a clause or sentence shows on its face that it is intended to express more specifically a previously stated duty, or to declare a new one and impose a liability for failure to perform it, it cannot properly be construed as limiting the scope of either duty or liability: see West v. Lysle, 302 Pa. 147, 151. Appellee would have us say that the clause declaring that he “shall alone be responsible for any such damage or injury” means that he shall “be responsible [only] for any such damage or injury.” Of course we cannot do this; the two things are essentially different, and the language actually used being clear, it must be given its plain meaning. Upon this ground we determined the contractor’s liability on the former appeal, and upon it we reach the same conclusion here, and not upon the ground that these contracts, if they were doubtful in meaning, would have to be construed favorably to the public; as to which point, however, appellee may also consult, not unwisely, 2 Williston on Contracts, section 626, Joy v. St. Louis, 138 U. S. 1, 38, and the cases cited in each of them. In the present case, the language used is clear beyond cavil, and needs no rule of interpretation to aid in determining its meaning.
With a wealth of authority, appellee argues for the accuracy of the statements in the following paragraph from 3 Williston on Contracts, section 1965: “Though one who contracts to build is not discharged from liability on his contract because of the destruction of his first or other attempts to perform the contract, the situation is different where the contract is to do work on a building and the building is destroyed. Here the parties assumed the continued existence of the building upon which the work was to be done, and if this assumption ceases to be true, the obligation is discharged. Even though another similar building were erected, the contractor would not be bound to work upon that. It would be a different building and a variation of his contract.”
That principle has no application to the situation here. This is not a contract “to do work on a building” but to construct a new building, which has not been destroyed; since work on it was begun, it always has been and still is in process of construction. The fire which caused this controversy did not destroy the building, but only injured or destroyed some of the materials in it. Recognizing this, appellee contends that the destruction of or injury to a substantial part of the work to be done by him, results in the same conclusion as if he had contracted to do work on a building which had been wholly destroyed. In answer to this, it is sufficient to say that the contention is in direct antagonism to the basic reason upon which the implied excusatory term of the contract is founded, viz., that the contractor cannot possibly fulfill the contract he made.
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Opinion by
Mr. Justice Simpson,
It is conceded that the written agreement involved in this case relates, as did that in Com. ex rel. v. NelsonPedley Construction Co., 303 Pa. 174, to work to be done in the construction, for the Commonwealth, of the first part of what is known as “South Office Building No. 2 in Capitol Park at Harrisburg,” and that the two contracts, including therein the various other writings made part thereof, differ only in the names of the contractors, the consideration to be paid, and the character of the work to be done. Every point made in the argument of this case inhered in and was also made in the Nelson-Pedley Construction Company case; some, it is true, were urged more strenuously here than they were there, and some of those argued there were not presented here. It is clear, therefore, that what is now before us is a reargument of some of the points decided on that appeal, and, in this light, we have most carefully reviewed that opinion. We cannot, however, despite the interesting and elaborate argument for appellee, reach any other conclusion than as there expressed.
It is earnestly contended that our prior opinion did not properly construe section 37 of the general conditions of the contract, partially because we ignored the word “alone” in the second sentence, which, it is contended, qualified the language of the one immediately preceding. We did not, however, base our conclusion as to the contractor’s liability on that section alone, but on a consideration of the whole contract. Appellee’s contention would be clearly erroneous, however, even if only that section were to be considered. It provides that “The [contractor’s] work in every respect, from the exe
cution of the contract bond and during its progress until final acceptance, shall be under the charge and in the care of the contractor and at his risk. He shall properly safeguard against any and all injury or damage to the public, [and] to any property, material, or thing, except where stipulated otherwise in the specifications, and shall alone be responsible for any such damage or injury from his undertaking of this work to any person or persons or thing connected therewith.”
We did not assert in our earlier opinion, nor could we have done so properly, that the word “risk” in the first sentence refers to fire risk only. It refers to any and every kind of risk to which such work is liable, before its final acceptance by the Commonwealth; the risk of the materials being stolen before or after delivery on the premises, or being injured, no matter from what cause, before or after they are incorporated in the building, etc., etc. This is a necessary conclusion from the fact that “the work in every respect......shall be under the charge and in the care of the contractor and at his risk,” “during its progress and until final acceptance,” and hence he must bear whatever loss results thereto before such acceptance. Any attempt of the Commonwealth to interfere with that work — save as specifically authorized by other provisions — would be a breach of appellee’s contractual rights, and might justify a rescission of the contract.
This conclusion is not affected by the second sentence above quoted. It does not pretend to cut down what was stated in the first sentence; on the contrary, it more specifically expresses the contractor’s duty and declares that he “shall alone be responsible” for any breach thereof. If we were to sustain his contention, he would not “alone be responsible,” but responsibility would be cast on the Commonwealth at least partially. This second sentence directly expresses a duty to do certain things, and imposes a liability on the contractor if he does not do them, and this is so whether the words
“from Ms undertaking of tMs work” mean, as the preceding sentence would seem to imply, from the time of Ms undertaking it, or mean only the fact of Ms undertaking it. We may concede also, as appellee contends, that one of the “purposes of the paragraph was to clearly set forth that the defendant was an independent contractor and to establish his liability as such”; not his liability under other circumstances, however, but his liability on each contract as fixed and determined thereby, when read and considered in its entirety.
There being no language in the second sentence expressing an intention of relieving appellee from any liability which he had previously assumed, its proper construction falls within the general rule that where a clause or sentence shows on its face that it is intended to express more specifically a previously stated duty, or to declare a new one and impose a liability for failure to perform it, it cannot properly be construed as limiting the scope of either duty or liability: see West v. Lysle, 302 Pa. 147, 151. Appellee would have us say that the clause declaring that he “shall alone be responsible for any such damage or injury” means that he shall “be responsible [only] for any such damage or injury.” Of course we cannot do this; the two things are essentially different, and the language actually used being clear, it must be given its plain meaning. Upon this ground we determined the contractor’s liability on the former appeal, and upon it we reach the same conclusion here, and not upon the ground that these contracts, if they were doubtful in meaning, would have to be construed favorably to the public; as to which point, however, appellee may also consult, not unwisely, 2 Williston on Contracts, section 626, Joy v. St. Louis, 138 U. S. 1, 38, and the cases cited in each of them. In the present case, the language used is clear beyond cavil, and needs no rule of interpretation to aid in determining its meaning.
With a wealth of authority, appellee argues for the accuracy of the statements in the following paragraph from 3 Williston on Contracts, section 1965: “Though one who contracts to build is not discharged from liability on his contract because of the destruction of his first or other attempts to perform the contract, the situation is different where the contract is to do work on a building and the building is destroyed. Here the parties assumed the continued existence of the building upon which the work was to be done, and if this assumption ceases to be true, the obligation is discharged. Even though another similar building were erected, the contractor would not be bound to work upon that. It would be a different building and a variation of his contract.”
That principle has no application to the situation here. This is not a contract “to do work on a building” but to construct a new building, which has not been destroyed; since work on it was begun, it always has been and still is in process of construction. The fire which caused this controversy did not destroy the building, but only injured or destroyed some of the materials in it. Recognizing this, appellee contends that the destruction of or injury to a substantial part of the work to be done by him, results in the same conclusion as if he had contracted to do work on a building which had been wholly destroyed. In answer to this, it is sufficient to say that the contention is in direct antagonism to the basic reason upon which the implied excusatory term of the contract is founded, viz., that the contractor cannot possibly fulfill the contract he made. The existing situation is that expressed in the first part of the quotation from Williston: “One who contracts to build is not discharged from liability on his contract because of the destruction of the first or other attempt to perform the contract.” This is equally true irrespective of the number who so contract. None of them is “to do work on a building,” which implies one existing; acting together, they are to
construct a new building. Logically, — though he has not argued and could not properly argue that the law is so, — appellee’s contention cannot stop short of alleging that any unexpected delay, not caused by himself, must, at his option, result in relieving him from the fulfillment of his contract.
Nor is it a matter of any moment that the contract in the Nelson-Pedley Construction Company case was for a much larger sum of money than is involved in the two contracts held by this appellee. As we said in the former opinion, “the language controls,” and this must be so whatever may be the amount involved. In the absence of something in the contract, or in the attending circumstances, from which a contrary conclusion can properly be reached, — and here there is nothing,— the same written language must have the same meaning no matter to what fraction of the total work a particular contract applies.
The situation, then, is that appellee and three other contractors agree with the Commonwealth to construct the building in accordance with the plans and specifications, and, when thus fully completed, to deliver it to the Commonwealth. Each of them agrees “to secure the completion of the various portions of the work in general harmony” with the others, to “properly connect and coordinate his work with theirs,” and to continue so doing until the building is fully completed and accepted. Each agrees that his “work in every respect, from the execution of the contract bond and during its progress until the final acceptance, shall be under the charge and in the care of [himself] and at his risk.” Each agrees that he will “properly safeguard against any and all injury......to any property, material or thing...... and shall alone be responsible for any such damages or injury from his undertaking of this work to any person or persons or thing connected therewith.”
Each contract provides that the time of completion is to he extended if there is “any damage caused hy fwe” hut none
of them gives to the contractor
any.
other or further relief should this provided-for contingency
happen,
and hence no other can be demanded: expressio unius est exclusio alterius.
It follows that the fire of October 3, 1930, was a risk which appellee and each of the other contractors expressly assumed, and there is nothing in the fact or extent of the fire which prevents any of them from fulfilling his express covenant. Notwithstanding the fire, each of them may do the work he covenanted to do, and, by working in harmony as they agreed they would, may complete the building (which was commenced at the time specified in their contracts and still exists), exactly as they contracted to do, and deliver it completed at the later date agreed upon by them and the Commonwealth since the fire. They do not assert that the Commonwealth has done or omitted to do anything which relieves them from liability, or which results in a waiver of its right to have them comply strictly with the terms of their contracts. It follows that appellee, as well as the others, must comply therewith, and that the loss caused by the fire to his work or material must be borne by him and not by the Commonwealth.
The declaratory judgment entered by the court below in this case is reversed and set aside, and it is now adjudged that the appellee, J. T. Evans, must bear the loss caused by the fire of October 3, 1930, to his work and materials, used or intended to be used by him in the fulfillment of his contracts, Nos. 2 and 4, dated July 1, 1929, for the heating and ventilation work and the plumbing and drainage work in South Office Building No. 2 in Capitol Park in the City of Harrisburg. The costs of these proceedings are to be paid by appellee.