Keller-Pike Co. v. Wetter , 252 Pa. 340 ( 1916 )

Opinion by

Me. Justice Mesteezat,

George F. Payne & Company, the defendants, were the general contractors for the construction of the new Stock Exchange Building in the City of Philadelphia. The part of the work to be done under the contract, known as the Mechanical Plant, was sublet to Keller-Pike Company, the plaintiff, by a contract dated May 24, 1912. Payne & Company agreed to finish the building on or before December 1,1912, and Keller-Pike Company agreed to do its part of the work by November 13, 1912. Subsequently, the Keller-Pike Company submitted a written proposal with specifications to the architect in which it agreed to install the permanent electrical equipment in the building. That work was not included in the agreement to install the mechanical plant. By an oral agreement, the price of the work was reduced and the architect instructed the plaintiff to do it, of which notice was given the defendants by the plaintiff. The work was done by the plaintiff, bills were rendered the defendants, and they received the contract price from the owner of the building. The Keller-Pike Company finished its part of the work about March 1, 1913, and the building was subsequently completed. Payments were made to the plaintiff during the progress of the work, and this action was brought to recover the balance due on the contract price, and for certain items of extra work done under each contract. The statement avers that the plaintiff completed its work on or about March 1, 1913, and that the delay in the completion of the work beyond the time specified in the contract was not due to the fault of the plaintiff, but wholly to the delay of the architect and of the defendants and their other subcontractors. Wetter filed an affidavit of defense in which, inter alia, he set up a counterclaim for failure to furnish certain items included in the contract and for damages by reason of the delay in the completion of the building which, as alleged, was “due solely and alone to the fault of the plaintiff”; admits that the architect requested him to enter into a contract with the plaintiff for the electric wiring and that it did the work and the charge therefor was paid to the defendants by the owner; denies that the temporary lighting plant was ordered orally or otherwise, and sets up, as a defense to this part of the claim, the clause in the mechanical plant contract that “no extra work will be paid for unless price is agreed upon in writing before proceeding with the same.” As a further defense, the defendants deny the jurisdiction of the court because of the provision in the mechanical plant contract between the plaintiff and defendants that all questions of dispute should be submitted for decision to the architect. The defendants’ counterclaim was made up of various items, one of which was $470.40 for furnishing hose reels and racks which, it was claimed, were included in the mechanical plant contract of plaintiff but were installed by defendants.

The court entered judgment for part of the claim for want of a sufficient affidavit of defense, and the parties went to trial as to the balance of the claim. There was a verdict and judgment for the plaintiff for the residue of the claim except four of the five items for extra work which the court directed the jury to disallow. The other item for extra work was $595.31 for installing the temporary electric lighting which, it was conceded, was not part of the original contract between the plaintiff and defendants.

The defendants have filed several assignments of error, but the controlling questions raised may be disposed of without discussing the assignments separately. It is contended that the charge of the court restricted the plaintiff company’s liability for delay in completing the building to its own delay, and excluded from the jury’s consideration the delay of the plaintiff’s subcontractors. Two excerpts from the charge in which the court speaks of the delay of Keller-Pike Company without referring to its subcontractors are the grounds on which defendants rest their contention. The case was tried on directly the opposite theory. The failure to install the boilers and radiators within the time specified in the contract was the principal cause of the delay in completing the building, as alleged by defendants, and this work was to be done by the plaintiff’s subcontractors. The plaintiff alleged that they were installed as soon as the building was ready to receive them which was denied by the defendants. Much testimony was submitted on both sides of the controversy, and the record does not disclose that the plaintiff at any time denied its liability if its subcontractors had failed in the performance of this or any other duty enjoined by its contract with the defendants. The charge itself, as a whole, clearly shows that Keller-Pike Company was treated as responsible for any delay caused by its subcontractors. The court charged: “The contract between Payne & Company and Keller-Pike Company required that Keller-Pike Company should do their part of the work by November 13, 1912......So, therefore, the question will come down to you primarily to decide, whether this building was completed in time and if it was not, whose fault was it?......You will recall that when the plaintiff’s case was before you, correspondence with Keller-Pike Company was called for and read to you, in order to show that the delay in completing this building was occasioned by the subcontractors of Keller-Pike Company.” The court then refers to Faith & Company as plaintiff’s subcontractors for installing the boilers and doing a large part of the plaintiff’s mechanical work, and review's the testimony of the plaintiff’s subcontractors as to how they were delayed by the defendants and their other subcontractors. The court again says: “There was evidently a delay beyond November 13th, and who was responsible for it? Was it Keller-Pike Company, or their subcontractors? Or, was it George F. Payne & Company or their other subcontractors. Now, the same thing relates to the radiators. The last of the radiators were received on January 13, 1913, and set during February, 1913. There were letters introduced showing that a demand was made for a delivery of the radiators; Faith & Company said the building was not in a condition to have the radiators installed.”

The appellants’ counsel manifestly understood that the case was tried on the theory that the plaintiff company was responsible for its subcontractors, and that such was the effect of the charge. In his ninth and tenth points, he refers to the “plaintiff’s failure to perform,” and the “plaintiff’s failure and neglect to complete” the work. In none of his eighteen points does he refer to the liability of the plaintiff’s subcontractors or ask the court to say to the jury that the plaintiff is responsible for its subcontractors. On the contrary, at the conclusion of its charge, the court inquired if counsel desired any further instructions, and appellants’ counsel replied that he only desired to call the court’s attention to the item for temporary electric lighting. It was the duty of counsel then to suggest what apparently was assumed throughout the trial that the plaintiff was responsible for its subcontractors, and the court would unquestionably have so instructed the jury. A party may not sit silent and take his chances of a verdict, and then if it is adverse complain of a matter which if an error would have been immediately rectified and made harmless: Commonwealth v. Razmus, 210 Pa. 609, 611. The two excerpts from the charge, assigned as error, standing alone, might not clearly convey to the jury that the plaintiff was responsible for the default of its subcontractors, but the charge as a whole is not open to this objection and was not misleading, but was a fair presentation of the case and, therefore, these assignments must be dismissed.

We do not think the language quoted in the fourth assignment, when read in the light of other parts of the charge, imposes too heavy a burden of proof on the defendants in establishing their counterclaim. The meaning of the trial judge, and the jury would so understand, was that the burden was upon the defendants to show that their counterclaim was just, and if the jury should so find or be of that opinion, they were entitled to it. In the use of the language complained of, the learned judge was not prescribing the measure of proof required to sustain the defendants’ counterclaim, nor did he intend to say that the defendants should establish it by a higher degree of proof than in the ordinary case. In our cases, cited by the appellants, the objectionable word is qualified by other words Avhich clearly required a higher degree of proof than in similar cases. In most jurisdictions in this country, it has been held that the language of the charge when used to indicate the degree of proof is not objectionable. We are convinced that the defendants were not injured by the instruction complained of, and if it was technically erroneous we would not reverse, as the trial consumed eight days and a mere suggestion by their counsel when notified to speak by the court at the conclusion of the charge would have corrected the error.

We do not agree with the defendants’ contention that the court erred in submitting for the consideration of the jury the so-called extra item of $595.31 for temporary electric wiring of the building without showing a written order for the work and without a prior offer and refusal to submit it to the decision of the architect under the arbitration clause of the contract between the plaintiff and defendants for the installation of the mechanical plant. That plant was installed by the plaintiff under the contract of May '24, 1912, and contained clauses requiring written orders for extra work and for the submission of disputes to the decision of the architect, but it did not include the electric wiring of the building. The permanent electric wiring of the building was done by the plaintiff under another and later contract, which was a proposal in writing by the plaintiff and an order or acceptance by the architect. This contract contained no arbitration clause, nor any provision requiring written orders for extra work. During the progress of the work on the building, and before the installation of the permanent electric wiring, temporary electric lighting facilities became necessary and were placed in the building by the plaintiff. The plaintiff claimed that the work was done on the verbal order of the defendants and their superintendent. The defendants denied liability for the claim, and that they or their superintendent gave an order for the installation of the temporary plant, and as a further defense alleged that the claim was within clause three of the contract between the plaintiff and defendants requiring the price of the extra work to be agreed upon in writing. The defendants also denied the jurisdiction of the court to adjudicate the question for the reason that by the terms of the contract between the plaintiff and the defendants it should have been submitted for the decision of the architect. It is manifest, we think, that the installation of the temporary electric lighting plant was not extra work under the contract of May 24,1912, and hence the clause requiring extra work to be ordered in writing is not a defense and the arbitration clause of that contract cannot be invoked to oust the jurisdiction of the court. As suggested by plaintiff’s counsel, if an extra at all, it was an extra to the contract for the permanent wiring of the building, which contained no arbitration clause or clause with regard to written orders, and hence these provisions of the contract of May 24, 1912, cannot be invoked by defendants to defeat a recovery of this item of the plaintiff’s claim. The installation of the temporary wiring was done, however, under a contract separate and distinct from the contracts for the installation of the mechanical and electrical lighting plants, and it is more than doubtful if the work can be properly called an extra to either of those contracts.

We think the defendants were entitled to the cost of installing the hose reels and racks in the building, and that the court erred in its instructions as to this item of tbeir counterclaim. It is conceded that the hose reels and racks were on the plans of the building attached to the original contrae^ but Keller testified that they were not included in the plaintiff’s contract. The dispute was referred to the architect by the defendants, and he decided that they were in the mechanical plant contract, and, therefore, should be installed in the building by the plaintiff. The plaintiff company was notified of the decision of the architect and required to install the articles at once. It recognized the authority of the architect to decide the dispute as well as the validity of his award, and requested its subcontractors to do the work. We think the question was within the arbitration clause of the contract, that the award was a valid exercise of the arbitrator’s authority, and that the plaintiff was required to install the reels and racks in the building. This item is $470.40, and in accordance with the appellee’s suggestion, the judgment will be reduced by that amount.

The judgment, as modified, is affirmed.