Truesdale v. Watts , 12 Pa. 73 ( 1849 )

The opinion of this Court was delivered by

Coulter, J.

The note for $1100 was not merged in the agreement of 24th Dec., 1844. The note was to go in payment pro tanto of the work which Truesdale covenanted to erect and complete by that agreement. But it was not to be extinguished or paid if the job was never completed. Truesdale could not have maintained an action on the contract without substantially completing it, and of course he could not offset the work unless the job was substantially completed. There is a stipulation in the contract that, if Truesdale does not complete the job, Watts may enter and com’ píete it himself, charging for all the work which he shall be under the necessity of doing, and that he shall in such event deduct the amount from the stipulated price. The Court leave it fairly to the jury to determine whether the work was substantially performed or not, and instruct them they may allow a.n offset if it is so done, but compensating the plaintiff in damages for such part as was not fully completed. This was answering the defendant’s point as favourably as he could reasonably expect, and there was no error in law as against him. The aspect in which the case was put to the jury enabled them to do justice in the whole controversy.

There is nothing in the other error. There was no consideration whatever, for the declaration of Watts, for promise it cannot be called, that he would allow an additional hundred dollars if Trues-dale would complete the work, by putting certain logs on the piers; and it is evident from the testimony of Dunlop, the witness to whom the declaration was made, that Truesdale did not expect it. It was a voluntary declaration, made in a loose conversation with the witness, and not communicated till after the logs were put on, which it seems that Truesdale considered part of the job.

Three other errors are assigned, which were withdrawn on the argument.

Judgment affirmed.