Pittsburg Iron & Steel Engineering Co. v. National Tube Works Co.

39 A. 76, 184 Pa. 251, 1898 Pa. LEXIS 888

Opinion

Opinion by

Mb. Justice Dean,

On June 11, 1892, the plaintiff entered into a written contract with defendant to erect a Bessemer steel plant of eight buildings, equipped with all the machinery necessary for the operation of a Bessemer steel pipe manufactory. The defendant agreed to have all building foundations ready for the super structures by December 1, 1892, and all other foundations by January 1, 1893. At the date of the contract defendant was operating on part of the same ground an iron pipe plant, employing about 7,000 men. In view of this, and to avoid as much as possible the interruption to their business while the new work was in progress, this clause was inserted in the contract : “ It is understood that this contract is to be completed on or before June 1, 1893, and as a failure on the part of the party of the first part to complete the work embraced in this contract would, in view of the necessities of the party of the second part and the requirements of its business, involve great loss to the second party which it would be difficult to estimate, it is hereby agreed that for each day after June 1, 1893, that the work remains unfinished, the first party shall pay to the second party the sum of three hundred dollars as liquidated damages.”

The work was not completed until about January 1, 1894, seven months after the date fixed in the contract, although defendant was partly in possession from October, 1893. The consideration was to be $340,000, in nearly equal instalments at sixty days’ intervals, commencing September 15, 1892. The plaintiff admitted payments to the amount of $323,300.65 on the contract, but claimed the additional sum of $53,011.38, for changes and additions to the original specifications, which, with a balance unpaid on the principal contract of $16,699.35, made the entire sum claimed $69,710.73. The plaintiff averred in its statement: 1. The contract and amount of claim. 2. That the delay of plaintiff in completion of contract of June 1,1893, was attributable solely to defendant’s conduct; that it had not prepared the foundations for the structures by December 18, 1892; that at its request, during the progress of the work, costly and extensive changes were made in the original plans, and large additions thereto, and by reason thereof the time was prolonged, but that, nevertheless, the work was completed as soon as possible. The affidavit of defense a/verred that defendant was entitled to have set off the $300 per day for so many days as plaintiff was in default after June 1,1893, in completion of building; denied the foundations were not ready at the times named in the contract; averred that all changes in the plans and work were voluntary on part of plaintiff, and that the delay was caused by plaintiff’s neglect in preparing the working plans. It claimed damages by reason of plaintiff’s default, in the amount of $66,300.

The statement of claim and affidavit of defense made up the issue as tried in the court below. The evidence on each side was voluminous, and the contention was wholly one of fact to be settled by the jury; they found for plaintiff, $76,154.48, about the amount of plaintiff’s claim with interest, and we have this appeal by defendant, with fifteen assignments of error. The complaints of appellant in the assignments are that plaintiff failed to establish by competent evidence the facts on which it sought relief from strict performance of its contract as to time of completion, and further that the court below committed error in its instructions to the jury as to the rules which should control them in computation of defendant’s damages. As to the facts relied on by plaintiff to excuse it from strict performance, there was evidence tending to establish each one of them; contradicted, it is true, by evidence on part of defendant, but still' leaving the contention in such situation that the court could not say the evidence was insufficient; therefore, there was no error in submitting it to the jury.

Was there error in the statement of the rule for computation of defendant’s damages which may have led the jury away from the true rule, that fixed by the parties themselves in the contract ? Por it may be plausibly argued that if the jury once thought they were permitted to disregard the contract in this particular they would be inclined to make a new contract for the parties, and set up one allowing no damages for delay in completion, without regard to reasonableness. What was the instruction as to the liability for and measure of damages ? Plaintiff averred the delay was occasioned by failure of defendant to perform its stipulations in two particulars: 1. The foundations were not completed in time. 2. It failed to fill in the ground around the foundations in time. And, further: 8. Radical changes and large additions to the original plans were made at request of defendants while the work was in progress. It is obvious if there was evidence tending to support these averments, and the jury found they were proved, then the only further question was, did the acts of defendant cause the delay in completion ? Not merely cause some delay, but the whole delay from June 1, to tbe date tbe plant was finished, handed over to and taken possession of by defendant. For the fact that plaintiff was obstructed by defendant in strict performance did not absolve it from further effort to speedily perforin. When the cause for the delay—the conduct of the defendant— ceased, the obligation to speedily finish was at once reimposed with all its force on plaintiff, and failure then to perform within a reasonable time warrants defendant in invoking the $300 per day damages for every day of unreasonable delay thereafter-wards. And this, as we read the charge and answers to plaintiff’s written points, was the instruction of the court below; it was in exact accord with White v. Braddock Boro., 159 Pa. 201, and Lilly v. Person, 168 Pa. 219. In the first case cited, the owner’s architect failed to furnish the plans and specifications in the time required by the contract, and changes were made which caused delay. It was held that the court below properly instructed the jury that if the delay in completion complained of by the owner was caused by the failure of the architect and by the changes, strict performance, was excused to the extent of the delay caused by the default of the architect. The second case cited, although in different language, is to the same effect, this Court holding that if the delay complained of was the result of changes directed by the owner in the character of the building, then stipulated damages could not be recovered for the additional time necessary to complete the changed structure. In the ease before us by a possible construction of some parts of the charge, it could be held to mean that an act of defendant which relieved plaintiff from strict performance as to time also relieved it from any liability for stipulated contract damages; but this is not the obvious construction, nor the fair one. Every point put by plaintiff requesting such instruction was flatly refused ; more than once the jury was told that the $300 per day for delay was damages which the parties by the contract had liquidated, and if there had been unreasonable delay after June 1, 1893, then for every day of such delay there should be computed for defendant that sum, and the amount deducted from plaintiff’s claim. The court did not, as argued, lay down ■different and inconsistent rules, but throughout, in substance charged as stated. The charge is quite elaborate, but not unnecessarily so, in view of the voluminous testimony. We do not believe it possible that a charge such as this, occupying certainly more than an hour in its delivery, with no time for careful preparation, could be so framed as to be exempt from criticism. With the time on part of counsel for careful examination of the typewritten charge, trifling defects are disclosed, such as the use of inapt words, or words so placed in the sentence as to be capable of other signification than that intended; but the question on review is not, is the language possibly capable of conveying a wrong meaning, but does the charge, as a whole, correctly and fully bring to the minds of the jury the true point in controversy and direct their attention to the evidence bearing upon it? If this be so, it is altogether improbable that they were misled by trifling inaccuracies of language or a single inadvertent misstatement of the evidence. When it requires on part of counsel a miscroscopic inspection of a charge to detect a flaw, we will not assume that it was manifest to the jury, and that they were controlled by it; and to work a reversal the error must appear much plainer to us than does the one complained of here. What we have said applies to all the assignments of error worthy of any notice.

All are overruled and the judgment is affirmed.