Gibbs v. School District of Girardville

46 A. 91, 195 Pa. 396, 1900 Pa. LEXIS 655

• Court: Supreme Court of Pennsylvania
• Decided: April 23, 1900
• Docket: Appeal, No. 29
• Status: Published

Opinion

Opinion by

Mb. Justice Mestbezat,

By an agreement dated March 18, 1896, the plaintiffs contracted to erect for the defendant a school building in the borough of Girardville, in Schuylkill county, for the sum of $13,238, “subject to additions and deductions as provided” in the contract. The contractors were to provide the materials and perform the work in accordance with the plans, drawings, details and specifications prepared by the architect. This work was to be done and the materials were to be furnished by “ the contractor under the direction and to the satisfaction of the board of school directors and P. Rudrauff, architect, acting for the purposes of the contract as agent of the said owners.” Article 2 of the contract provides that the architect shall furnish the contractors with such other drawings or explanations as may be necessary to detail and illustrate the work to be done, and requires the contractors to conform to the same as part of the contract so far as they may be consistent with the original drawings and specifications. Article 3 is as follows: “No alterations shall be made in the work shown or described by the drawings and specifications except upon a written order of the architect, and when so made, the value of the work added or omitted shall be computed by the architect and the amount so ascertained shall be added to or deducted from the contract price. In the case of dissent from such award by either party hereto, the valuation of the work added or omitted shall be referred to three disinterested arbitrators, one to be appointed by each of the parties to this contract and the third by the two thus chosen; the decision of any two of whom shall be final and binding, and each of the parties hereto shall pay one half of the expenses of such conference.” Article 4, provides that the contractors “ shall, within twenty-four hours after receiving written notice from the architect to that effect, proceed to remove from the grounds or buildings, all materials condemned by them, whether worked or unworked, and to take down all portions of the work which the architect shall by like written notice, condemn as unsound or improper, or as in any way failing to conform with the drawings and specifications.” Article 5 provides that if the contractors shall fail in any respect to prosecute the work with diligence or in the performance of any part of the agreement, and being so certified by the architect, the owners may, after five days’ written notice, provide labor and materials and deduct the costs thereof from any money due the contractors, and if the architect shall certify that such failure is sufficient ground for such action, the owners may terminate the employment of the contractors and complete the contract at their expense. The certificate of the architect as to the expense incurred by the owners is conclusive upon the parties. The specifications require the contractors to “ lay up all foundation walls and piers to grade line with best large mountain quarry stone of sufficient size beds and builds to make a first class piece of masonry in all respects,” and “ no less than fifteen per cent of entire stones to be headers, passing entirely through the walls.” In the specifications it is provided that “ if any errors are found on the plans, thejr must be referred to the architect for correction before proceeding with the work.” A few days after the contract was signed by the parties, the contractors began work. The old building on the lot was removed, excavations made, and the foundation walls were built. The work proceeded until the contractors discovered an error of six feet in the walls on the foundation plans of the building. On May 25,1896, within a few days after the mistake had been discovered, the contractors notified the architect in writing of the error, and requested him to correct it before they proceeded with the work. On the following day a notice was sent the school board that an error liad been discovered and that the architect had been requested to correct it. The contractors also notified the school board in writing about June 1, 1896, that by a mistake of the architect, an error had been discovered in the walls of the building; that by reason thereof their work on the building had been delayed over a week, and that they would hold the defendant responsible for the loss and expense occasioned by the delay. Under objection the court admitted a paper offered by the plaintiffs, diited May 12,1896, signed by the contractors and witnessed by Thomas L. Evans, in which the contractors acknowledge that certain broken range stone work was omitted by them, and in lieu thereof agreed to cement the wall or, on failure to do so to the satisfaction of the architect, that $150 should be deducted from money due them, and such change in the wall should not affect the contract. A bout June 11, 1896, the contractors notified the school board that it had committed a vital breach of the contract, and that such conduct on the part of the defendant was taken by the contractors as a rescission of the agreement, and that an action would be brought for a breach thereof. This notice also acknowledged the receipt of defendant’s notice to remove portions of the wall, denied that the contractors had not erected the walls according to the plans and specifications, also denied that the removal of the wall was an “ alteration ” as provided for in the contract, and set forth wherein the plans and specifications were alleged to be defective.

The architect notified the contractors in writing on May 17, 1896, to remove all the stone not up to the standard, and to carry out broken range work on the rear of the building above ground within twenty-four hours. On the following day he wrote the contractors a complaining letter in which, while admitting he gave them permission to use surface stone instead of quarried stone, he says he is compelled to resort to extreme measures to prevent the use of inferior stone in the foundation walls and if such conduct was persisted in, he would refuse to grant them a certificate. By a written notice of June 8,1896, the architect called the contractors’ attention to the fact that fifteen per cent of the stone and the broken range work did not pass entirely through the walls as called for in the specifications, and notified them to remove such parts of the walls as did not conform to the specifications and to rebuild the same at once. By a notice from the architect of the same date, the contractors were required to begin the work of the removal and restoration of the walls within twenty-four hours, and their attention was directed to article 4 of the contract. To this notice was attached a blue print showing the portions of the foundation walls to be removed. On or about June 16, 1896, the school board, in a written notice, reciting the refusal of the contractors to comply with the notices given them by-the architect and their abandonment of the work, notified the contractors to begin the work referred to in said notice within ten days as provided in article 5 of the contract.

The contractors abandoned the contract, pursuant to their notice to the school board of June 11, 1896, and on June 22 brought this action. In the statement, they aver that' their claim is for -15,000 for work done and materials furnished in pursuance of, and in accordance with, the contract; that the architect was incompetent and furnished plans and specifications improper and impossible for the performance of the work; that the defendant refused to furnish proper plans and specifications, and thereby committed a breach of the contract and prevented plaintiffs from performing the work.

On the trial of the cause in the court below, the defendant resisted a recovery on the grounds: (1) that the contract furnished a remedy for any defect in the plans and specifications and that the plaintiffs were compelled to resort to the mode of procedure therein provided, before they could rescind and abandon the contract, and (2) that the plaintiffs had not complied with the terms of the contract in the performance of the work done and materials furnished. Special reference to the numerous assignments of error is unnecessary, as a determination of these questions will dispose of the case.

1. Soon after the error in the length of the foundation Avails had been discovered by the contractors, they gave notice of the fact in writing to the architect and the school board. As recited in the notice, this was done in accordance with the instructions in the specifications, which required notice of the error to be given before the contractors proceeded with the work. At this time, so far as the evidence discloses, no other mistakes had been found on the plans; at least the contractors had given notice of none. This mistake, it is conceded, was unknown to the architect or school board. After the contractors had given notice of the error, an attempt was made by them and the school board and its architect to adjust their differences arising out of the mistake, but nothing was accomplished. The architect then, as required by the contract, gave the contractors the notices of June 8. They refused to comply therewith, and on June 12, notified the school board of other alleged defects in the plans of parts of the building not yet constructed, and that they treated its conduct as a rescission of the contract, and would bring an action for the breach.

• The learned court below held that there was no provision in tlie contract for compensating the contractors for work done by reason of the error of the architect and that, therefore, there was no remedy provided in the contract for correcting the error discovered in the foundation walls. This was evidently not the view of the contractors or their counsel when they gave tlie architect notice of tlie mistake. That notice assumes that tlie specifications afford a remedy by referring to and being given pursuant to their requirements. The notice of the architect was in writing and required the changes to he made according to a plan submitted therewith. A comparison of this plan with the original plans and specifications would have at once disclosed the fact whether they wer§ the same or different. If tlie plan accompanying the notice was different, then it is clear that there was an “alteration” required by the architect in his “written order,” for which redress for tlie contractors was provided in article 8 of the contract. The clause in the agreement that tlie errors found on the plan must be referred to the architect before the work was proceeded with, in no way conflicts with the provisions of article 8. That clause merely prevented the contractors from doing work which they knew should not be done and thereafter compelling tlie owner to pay for it. It does not deprive the contractors of compensation for work performed by reason of alterations or changes made pursuant to written instructions of the architect. The cause or necessity of such changes is immaterial so far as the right of the contractors to remuneration for the work done is concerned.

The contractors have no standing to insist upon the additional errors set forth in their notice of June 11, as a reason for tlie rescission of the contract. If they desired to avail themselves of these mistakes, it was their duty to have brought them to the attention of the architect and requested that the plans he corrected. If the architect and school board had refused to comply with the request, the contractors could then have rescinded tlie contract. Instead of pursuing this orderly course and the one required by the agreement of the parties, the contractors attempt to relieve themselves of their covenants in violation of the agreement, and at the expense of the school board. A completo remedy for any additional work required of the contractors in tlie erection of this builfiing occasioned by a change of the plans, is provided by the terms of the agreement and must be pursued before they could rescind the contract and recover in this action.

2. This is an action of assumpsit for the work performed and material furnished prior to the rescission of the contract. To enable the plaintiffs to recover they must aver and prove that the work was done and materials were furnished substantially according to the plans and specifications accompanying and made part of the contract. The specifications provide, as we have seen, that all foundation walls and piers shall be laid up “ to grade line with best large mountain quarried stone of sufficient size beds and builds to make a first class piece of masonry in all respects,” and further tliat “ no less than fifteen per cent of entire stones to be headers passing entirely through the walls.” It was conceded on the trial that the contractors had not complied with these requirements in the specifications. As an excuse therefor, it was claimed and, against the defendant’s objection, proved that the architect had orally waived these provisions of the contract. The learned court below held that the architect had the authority by parol to waive this part of the contract or to make a new contract in relation thereto. This ruling of the learned judge was apparently based upon his construction of that clause of article 1 of the contract in which the architect is referred to as “ acting for the purposes of the contract as agent of the said owners.”

We cannot agree with the learned judge in his interpretation of the contract. On the contrary, we think that the architect was the agent of the defezidant to see that the cozztract was enforced, azzd that he must act accordizig to azrd within the terzns of its provisions. His powers znust be exercised in conforznity with and not contrazy to the purpose and intention of the parties as expressed in the agreement. It will zzot be presumed that the school board izitended to clothe the architect with azi authority which would perznit him to annul or set aside the contract. Such a constructiozi would not be reasozzable azzd, in our opinion, is not supported by the language of the agreement.

■ The parties stipulated in their contract the manner in which the architect might exercise his authority requiring alterations to be znade izi the work, and in no other way or manner could such alterations be made so as to bind the defezidant. In other words, this part of the contract is as obligatory as any other part of it and neither party, without the other’s consent, is at liberty to violate it.

There is every reason why all orders of an architect requiring the work to be done in conformity with a modification oí change in the plans and specifications should be in writing. It prevents misunderstandings and litigation between the parties by substituting written and definite for parol and uncertain evidence as to the instructions given the contractors by the architect. There can be no better illustration of the necessity of a strict compliance with a building contract than the case at bar. Had the contractors demanded of the architect written authority for the changes made by them in the work done and materials furnished instead of acting on the loose and uncertain declarations, alleged to have been made in conversations with him, this expensive and lengthy litigation could have been avoided. The contractors, however, saw proper to act in this matter in direct opposition to the plain requirements of their contract, and they must accept the responsibility which they thus assumed.

Recurring to article B of the contract, it is seen that no alterations can be made in the work shown or described by the drawings and specifications, except upon a written order of the architect. The changes made by the contractors in substituting mountain surface stone for mountain quarried stone and “ lap binders ” for “ headers ” in the foundation walls were clearly “ alterations ” within the meaning of this article and, as they were not authorized in writing, the contractors .were not justified in making them.

That the architect and contractors believed that the latter had no authority to make changes in the work without the architect’s written order is apparent from the numerous written notices which passed between them. They would have been unnecessary if the architect could have verbally directed or permitted alterations in the work and materials required by the contract. The written notices of the architect, who was dead at the time of the trial, are significant as tending to contradict the testimony of the plaintiffs that he orally directed any changes in the construction of the foundation walls.

The plaintiffs recognizing the necessity of a compliance with the contract in so far as they did the work before they could maintain this action, aver in the statement “ that the work done and walls so erected were done in accordance with the plans and specifications furnished for said foundations.” As we have seen, it is conceded that this averment is not supported by the evidence, but on the contrary, the specifications were departed from in the particulars mentioned.

The court below should have instructed the jury, as requested by defendant, that under all the evidence the plaintiffs were not entitled to recover.

The judgment is reversed.