Bruck v. Mausbury , 102 Pa. 35 ( 1882 )

Mr. Justice Sterrett

delivered the opinion of the court, December 30th 1882.

The claim of plaintiff below, for work done in the erection and construction of a water power saw mill, was resisted on the ground that he had not performed his contract, in that he had not completed and put the mill in good running order ; “ that the roof was not completed, pipes not laid, and other important things, necessary to the completion of the mill, were left undone.” There was some conflict of testimony as to the terms of the verbal agreement under which the work was done, but the main question for the jury was whether the contract had been substantially performed by plaintiff, and if not, whether defendant was responsible for the non-completion of the work. Their verdict was “in favor of the plaintiff for two hundred and forty-six dollars, and the plaintiff to complete the job according to contract.” Several months after rendition of the verdict, the plaintiff, representing that he had “ completed the mill according to contract,” asked the court “ to remove the stay of execution and permit him to have judgment and execution for the amount of the verdict.” Ex parte affidavits were ‘presented by both parties, and after argument the motion was granted, judgment entered and execution issued for the amount found by the jury. The action of the court in thus entering judgment, etc. is the subject of complaint in the several specifications of error.

If that clause of the verdict which provides for the completion of “ the job according to contract ” could be treated as surplusage the judgment might be sustained; but, it cannot be so regarded. The jury evidently considered it a matter of substance, something to be done by the plaintiff in fulfillment of his contract, and as part consideration, at least, of the sum found in his favor. The only inference that can be fairly drawn from the language of the jury is that they were satisfied plaintiff had not fulfilled his contract, and that lie was still bound to complete it. Hence, it could not be treated as surplusage without disregarding the intention of the jury and thereby doing injustice to the defendant. To avoid that result the court undertook to inquire whether the plaintiff, after the rendition of the verdict, had completed the mill according to contract. That was a question of fact, involved in the issue, and should have been settled by the verdict. The defendant had a right to have it determined by the jury and not by the court. The issue presented by the pleadings called for a general verdict, which would have been conclusive of every question of fact involved therein, and, after judgment, a bar to all future controversy. The verdict was not responsive to the issue and should not have been received. A similar principle is recognized in Glass v. Blair, á Barr 196, in which the verdict was “ for the defendant and that the plaintiff receive back the machine.” In reversing the judgment in that case this court said; “ It is an insurmountable objection to the verdict that there is no means of compelling its performance; for if the defendant refuses to deliver the machine, which is an essential part of the verdict, there is no means to compel him. The only remedy would be by suit, on the ground of rescission of the Contract, and thus the verdict, which was intended to end the controversy, would be but the commencement or foundation of another action.”

It is no answer to say that, after rendition of the verdict, the plaintiff completed the work, as the jury determined he should, and that fact has been so found. The court had no right to pass upon that question, nor could they do so without virtually re-trving the case for the purpose of ascertaining what the contract was and to what extent it was performed by the respective parties thereto. The plaintiff in error has a right to have all questions of fact, involved in the issue, submitted to and passed upon by a jury.

Judgment reversed and a venire facias de novo awarded.