Warren-Ehret Co. v. Byrd , 220 Pa. 246 ( 1908 )

Opinion by

Mr. Justice Stewart,

The defendant, John Byrd, here the appellant, engaged as subcontractor to construct the roof of a gymnasium according to certain plans and specifications. Byrd in turn sublet his contract, engaging one party to do the carpentry in connection with the roof, and the plaintiff company to cover the roof as constructed by the carpenters Avith what is called four-ply slag grit roofing. When completed the roof was found defective in that it leaked. The present action was brought by plaintiff company to recover the contract price for the slag grit roofing. On the trial the plaintiff’s right of action was denied, on the ground that the contract between the parties provided for a reference of all disputes that might arise to the architects, whose decision should be final; and that the particular dispute here, namely, whether the slag grit roofing provided by the plaintiff company corresponded to the specifications, had been determined by the architects adversely to the plaintiff. The reference to the architects had been made at the instance of the defendant, and not until after the present action had been brought. It was not attempted to be shown that the plaintiff company appeared by anyone before the architects in the investigation made, or consented to the reference, or recognized in any way the right of the architects to pass upon any dispute between it and the defendant. This left the question to be determined under the terms of the contract. The plaintiff’s contract is expressed in its letter accepting the defendant’s order. It reads as follows: “ We have booked your order for covering roof of the grand stand, Franklin Field, for the University of Pennsylvania, as per your order of March 20, 1903, with a four-ply slag grit roof, guaranteed against natural wear and tear for ten years, as per plans and specifications at the rate of four cents (.04) per square foot, less a rebate of one-half cent (.00J) per square foot.” The plans and specifications here referred to are those which accompanied the contract with the general contractor, and with which the plaintiff company was entirely familiar. So far as these related to the particular work which plaintiff had engaged to do, they became part of its contract with the defendant, and plaintiff would be entitled to recover only as compliance was shown. But beyond this plaintiff was not bound by any of the provisions or stipulations in the general contract. It was not a party to it, and was not made subject to it by its terms ; on the contrary, that contract, providing among other things for a reference to the architects of all disputes which might arise between any two or more contractors or subcontractors, or between any of the contractors and subcontractors, or between the owner and any contractor or subcontractor, in express terms excludes the plaintiff, and those like it, doing work or furnishing materials to a subcontractor, from its operation. It provides that: “Wherever the word contractor is used in this specification it refers to those having a direct contract with the owner, and to subcontractors to such direct contractors, and to no other persons whatsoever.” In this contention, therefore, a finding by the architects with respect to a controversy between these parties, was not only immaterial but wholly incompetent as evidence. The defendant was a subcontractor to the direct contractor; but the plaintiff stood in no such relation, his relation being with a subcontractor. The offer to show such finding by the architects was properly refused by the court.

The plaintiff offered evidence to show a substantial, if not strict, compliance on its part with the plans and specifications; that it had done its work in a workmanlike manner, and that the leakage was due to the defective manner in which the carpentry work, for which it was not responsible, was done. The defendant, on the other hand, offered evidence in support of his contention that the fault was with the slag roofing, and that it was defective because of failure to conform to the specifications; that the felt used was not lapped as required; that hot pitch had not been used in laying the sleepers, and that the slag grit used was of smaller size than the specifications called for. These were the questions of fact submitted to the jury in a charge which, with entire fairness, so far as we can see, summarized and presented the evidence. The finding of the jury in favor of the plaintiff for the full amount of its claim is a virtual affirmance of each of the plaintiff’s contentions in this regard. Whether it was a four-ply felt that plaintiff was using, and whether the pitch was being used in the way required, were subjects of dispute very early in the course of the work. The plaintiff’s evidence was to the effect that as soon as it knew of any dissatisfaction, it asked the architects to inspect a sample of work laid, and upon inspection, after explanations given, the architects expressed their approval, and directed the company to proceed and finish the work according to sample. The defendant was not present. The instruction of the court with respect to this feature of the case was as follows : “ My instruction to you upon this branch of compliance with the specifications is. that if you believe that although the specifications directed a certain method, all the parties in interest agreed that another method should be substituted, then so far as the substituted method was carried out, if you believe it was carried out, there was substantial compliance in respect of that part of the specifications. If you do not believe such to have been the case, then there was a direct violation of the contract.” The plaintiff’s contention was: (1) that there was no departure from the specifications in any material effect; (2) that even though a variation were shown, the work done corresponded exactly to the sample exhibited to the architects and which met their approval. Because it was not shown that the defendant was present when the examination was made by the architects, and the plaintiff was directed to proceed according to the sample, it is argued that submission to the jury to find whether all the parties in interest agreed that another method should be substituted, assumed a fact for which there was no support in the evidence. In a certain sense the defendant was a party in interest, and we must assume that he was not present at the inspection. But his interest was not such as made him a necessary party to an agreement of substitution or change made between the contractor under him and the architects. His only interest was to have the work done in a way which would meet the approval of the architects, who, under the terms of his contract, were to be the final judges in any dispute between him and the contractor over him with respect to the work. Of course, it would have been otherwise had the change, if any were made, imposed any additional burden upon him, but nothing of the kind could have resulted. The plaintiffs, in submitting to the architects a sample of their work, did nothing beyond what the defendant would have been obliged under his contract to do, had he undertaken the work himself. In proceeding with the work in the manner directed by the architects, they were meeting the requirements of defendant’s contract much more certainly than by any other course, since the architects were the final arbitrators. If the agreement contemplated a substitution of one kind of work for another, and such substitution was in fact observed by the plaintiff, it was binding on owner and contractor alike under the contract, Robinson & Kennedy v. Baird, 165 Pa. 505, and was without prejudice to the defendant. The fact that the latter was not present or consulted with regard to it, is an immaterial circumstance. If, in consequence of such circumstance, the roof proved defective, the responsibility would not rest with the defendant. Such fact could not prevent his recovery of the contract price.

With quite as little reason can default on part of the plaintiff be claimed because of failure to give defendant a written guarantee corresponding in form to that expressed in the original plans and specifications. The entire contract between plaintiff and defendant is to be found in defendant’s written order and plaintiff’s written acceptance. The latter expressed a guaranty, and it is by no means certain that any other was in contemplation of either party. Be that as it may, the form of guaranty expressed in the plans and specifications was not for plaintiff’s but defendant’s observance as part of the latter’s contract. If defendant proposed to exact from plaintiff such a guaranty, he should have stipulated for it. The plain reading of the plaintiff’s letter of acceptance makes it clear that the word's, “ as per plans and specifications,” referred to the work to be done and nothing else. The guaranty which plaintiff subsequently tendered, while, as we think, unnecessary, covered fully plaintiff’s entire engagement in this regard. In point of. fact the difference between it and the guaranty provided for in the plans and specifications is unsubstantial. It would be a narrow construction that would give one a larger effect than the other.

The case was fairly submitted to the jury, and we see no merit in any of the assignments of error.

Judgment affirmed.