Danville Bridge Co. v. Pomroy & Colony , 15 Pa. 151 ( 1850 )

The opinion of the court was delivered by

Bill, J.

By their agreement of the 26th of June, 1846, the plaintiffs below assumed the liability and undertook the engagements of Kownover and Evans, in respect of the superstructure of the bridge to be rebuilt. The order drawn by the latter in favor of the former, and the acceptance by the company, so refers to the original contract as to show the parties contemplated it as the basis of the transaction, and as the standard by which the relative rights and remedies of the now plaintiffs and defendants were to be measured and determined. It is true, the order and acceptance furnish the immediate foundation of the action, but its sufficiency, as affording means of redress, is influenced and limited by the articles of the 11th of May, to which all the parties unequivocally point as the governing instrument. The cause is, therefore, to be determined precisely as though Pomroy and Colony were the original contractors for building the superstructure of the bridge, upon the terms and under the conditions stipulated between Kownover and Evans and the company. Thus treated, the case may be approached disembarrassed of some of the perplexities a different view tends to engraft upon it.

By the terms of the first contract, the bridge was to have been finished on the 1st of January, 1847, under penalty of a stipulated forfeiture. But all the evidence in the cause shows that this stipulation was waived. Indeed, it was not at all insisted on, as furnishing any ground of defence. Had it been, the terms and time of acceptance of the order by the - defendant would have afforded the plaintiffs a triumphant answer: Preston v. Finney, 2 W. & Ser. 55. In pursuance of their agreement with Kownover and Evans, the plaintiffs, with their workmen, commenced to build the superstructure in the year 1846. It progressed, under the immediate supervision and direction of the defendant’s engineer, until November, 1847, when it was practicable for the passage of wagons and other vehicles. Early in that month, the plaintiffs opened it to travellers and others, intending to take the tolls for their own benefit; but their right to do so was disputed by the defendant, and a quarrel ensuing, the bridge was again closed by the contractors. It so continued until the first of December, when, it would seem, the company took forcible possession of the structure; or, at least, the possession was assumed against the will and in spite of the plaintiffs, who were then carrying on the work towards its completion. On the same day, the defendants threw the bridge open for the transit of animals and carriages, taking toll in the usual way, and placed persons, as guards, to prevent the contractors from again assuming the command of it. The possession and collection of tolls has been continued ever since, the plaintiffs, in the'mean time, continuing to labor on the bridge until August, 1848, when, pronouncing it to be completed, they demanded to be paid to them $1566.61, the balance due of the sum called for by the order of June, 1847, as they averred. Payment was refused, because of certain defects and omissions in the work, which, it is insisted, constitute such a violation of the original contract as, in law, bars the action, and wholly defeats the plaintiffs’ right to recover any part of the sum demanded. The Court of Common Pleas denied this, and instructed the jury that the defects and omissions complained of, if proved, did not affect the whole consideration of the contract, and, being capable of compensation in damages, were not, necessarily, an answer to the whole of the plaintiffs’ demand. The defendant’s position is drawn from the general rule, that an entire contract must be performed in all its parts by him who claims a counter performance from the other contracting parties, and if there be a failure in any particular, no recovery can be had, however meritorious may be the claim preferred for services actually performed in furtherance of the engagement. At one time, this rule was rigidly adhered to, though the consequence was to bestow upon one the advantages derived from the labor, time, and money of another; because, it was .supposed, an insuperable technical difficulty forbade a division of the subject of the contract. Mutual covenants, like those which exist here, were treated as necessarily entire; and as performance on one side was regarded as a condition precedent to a demand for performance on the other, nothing short of a perfect discharge of every part of the undertaking was accepted as a sufficient fulfilment of the condition. This was peculiarly so when the contract was for the execution of a task, involving skill and labor on one side, to be compensated by payment in money, or other valuable thing, on the other. And it is still the general rule which governs the remedy upon entire contracts, as is shown by Shaw v. The Turnpike Company, 2 Pa. Rep. 454; Alexander v. Hoffman, 5 W.& Ser. 382, and other cases.

Bui; the injustice inflicted in practice, by a liberal application of it in all cases, long since introduced an exception to, or rather modification of a principle, which, however perfect in theory, was found to work harshly in a large variety of instances. That modification was, perhaps, first recognised in Boone v. Eyre, 1 H. Bl. 273, note a: and is thus stated in Ligget v. Smith, 3 Watts 331, where it was approved and applied. A mutual or dependent covenant, which goes but to a. part of the condition on both sides, and whose breach may be compensated in damages, is to b.e treated exactly as if it were separate and independent. Its non-performance will not, necessarily, bar the entire right of the plaintiff. So too, a covenant which is in form entire, but in truth embraces a variety of acts, more or less essential to the whole performance, may be so discharged as to sustain an averment of performance, though a literal compliance cannot be alleged: Wilhelm v. Caul, 2 W. & Ser. 26; Preston v. Finney, id. 53, and Chambers v. Jaynes, 4 Barr 39, are examples of this. Each of them proceeds upon the ground that, where a party, acting honestly, and intending to fulfil his contract, performs it substantially, but fails in some comparatively unimportant particulars, the other party will not be permitted to enjoy the fruits of such imperfect performance, without paying a fair compensation according to the contract, receiving a credit for any loss or inconvenience suffered. And, perhaps, it may be asserted, that where a thing -is so far perfected as to answer the intended purpose, and it is taken possession of and turned to that purpose by the party for whom it is constructed, no mere imperfection or omission, which does not virtually affect its usefulness, can be interposed to prevent a recovery, subject to a deduction for damages, consequent upon the imperfection complained of. Of course, the indulgence is not to be so stretched as to cover fraud, gross negligence, or obstinate and wilful refusal to fulfil the whole engagement, or even a voluntary and causeless abandonment of it. This distinction is pointed out by Mr. Justice Sergeant, in Preston v. Finney, from whence he draws the conclusion, that “ in those .cases where the law allows the party to recover on a quantum meruit or quantum valebat, when there is a special contract, this is the principle which applies.” When a large proportion of the work remains undone, so as to disappoint the expectations and motives which led to the contract, or, in the absence of dispute, the undertaker perversely refuses to finish the work, having it in his power to do so, in refusal of the request of the other party, this will furnish a sufficient answer to an action on the contract. Both of these features characterized Shaw v. The Turnpike Company, 3 Pa. Rep. 53. The latter is not mentioned in the report of the case, but it is said, in Preston v. Finney, to have been so. At the interview of August 1848, between the plaintiffs and the Managers of the Bridge Company, the demand of payment' made by the former was refused by Mr. Hibler, the president, in the name of the board, because of the omission of the skewback braces, iron pedestals at the ends of the bridge, tin at the lower ends of the truss braces, and the fastening of the floor. The objections are repeated by the notice of special matter, with the addition, that the superstructure was not completed according to the plan and specifications; that it was unskilfully constructed and framed, and that its materials and workmanship are bad and defective. These, then, comprise all the grounds upon which it is claimed the plaintiffs should be barred of their action. The allegation that the superstructure is not completed according to the plan is urged no further, in proof and argument, than the omissions I have already particularly enumerated. Of the alleged defective material and unskilful workmanship, it will suffice to observe, that it is conceded on all hands, this can only be legitimately considered as furnishing ground for an estimate of damages to be deducted from the price of the bridge. It was so submitted to the jury, and of this portion of the instruction given them, no complaint is made, as I understand it. We may, therefore, confine ourselves to the alleged omissions in the inquiry, whether these, under the rules I have brought to notice, are to be considered as a full answer to the action. By the original contract, the superstructure of the bridge was to be framed according to the “Burr plan,” “ similar in all respects to the State bridge across the mouth of the West Branch of the Susquehanna at Northumberland, except so far as is hereinafter provided for.” The last-mentioned structure is provided with skewback braces; cast-iron pedestals, to protect the posts at the entrances of the bridge from injury by wagon-wheels; tin coverings at the junction of the posts and truss braces, and the floor is fastened down with wooden pins. In these enumerated particulars, the Danville bridge is deficient. But the plaintiffs answer that the pedestals, tin, and fastenings of the floor do not enter into the framing of the superstructure, according to Burr’s plan. That, being. wholly independent of it, they were not bound to furnish them, more especially as their work was done under the eye of an engineer, selected by the company to oversee the progress of construetion, who gave no instructions on these points. There is much plausibility in this argument, and I confess, with my very limited knowledge of the subject, I felt, during the discussion, very much. inclined to adopt it. But the court below put it upon, perhaps, the safer ground, that, treating the particulars as part of the plan, they were comparatively of such trifling import as to be the subject of compensation in damages. In this we agree with the learned judge who tried the cause. They do not enter, vitally, into the structure. It may be, and has been, profitably used without them; and, at all events, the application of a very small sum of money would supply them with as much effect as though they had been placed there by the contractors. Of their obligation so to place them, there is at least some doubt, and this, in itself, is sufficient to deprive the objection of any fatal effect which, by possibility, might be attributed to it.

The principal subject of debate, however, is the omission of the skewback braces. There is some question, made by the evidence, whether these enter into “ Burr’s plan” as a necessary part of it. They are, however, used in the Northumberland bridge, and it seems a highly useful, and, perhaps, important portion of that peculiar form of bridge. Being, too, a portion of the framing, I think we may take it as indisputable that the parties to the original contract contemplated the insertion of these braces as a part of the projected structure; and it was, consequently, the duty of the plaintiffs to give them a place in the bridge built by them. How far their entire omission, independently of other circumstances, might furnish a complete defence to this action, it is not now necessary to determine; though, I am strongly inclined to believe, they fall within the exception I have stated, as being, comparatively, of little cost, by incurring which they might, even now, be added to the superstructure. But, in this connection, it is to be recollected an agent, called an engineer, was appointed by the managers, to whose supervision and direction the whole of the work was to be subject during its progress, and who, in the language of 'the contract, “ shall, from time to time, give such directions, as to form, dimensions, and manner of constructing said work, as may be necessary to carry out the plan contemplated in these articles.” These are large powers. In the exercise of them, the engineer was in almost constant attendance, directing and correcting, under the eyes and with the knowledge of the defendants. It is in full proof, too, that Colony proposed to the engineer an alteration, supposed by the former to be an improvement in the structure, by connecting the entrance posts with the skewbacks, instead of inserting the skewback brace. This seems to have been approved of by the engineer, and the alteration was made, with his full knowledge. If necessary, it would be well worth consideration, whether assenting to such a change was not within the scope of his .powers, particularly as it was shown the skewback brace is not always found in the Burr bridges. But, waiving this, it is beyond question he, as the servant of the company, specially deputed to watch the progress of the work, knew of the alteration not long after the plaintiffs commenced the erection of the truss-work. Now, notice to him was notice to his principals. Nay, it is to be presumed that he communicated the fact to them, with his approval of it. One of the then managers, indeed, testified he was told of the alteration by the engineer, and of his approval, because, as he said, he thought it better than the other plan. After this, the bridge progressed to completion, through a series of months; the managers took possession and assumed the control of it in December, 1847; and it was not until August, 1848, when the contractors, having, as they supposed, .finished their undertaking, asked for the balance due to them, are- told of the objections entertained by the defendants. Perhaps, under these peculiar circumstances, it would not be too much to say, the assent of the defendants to the omission of the skewback braces ought to be presumed. But, at all events, it takes away every pretence for saying the plaintiffs were guilty, either of wilful obstinacy or gross negligence in the particular under consideration. It cannot be overlooked that the builders naturally looked to the engineer, as the authorized medium of communication between them and the company; and that the latter, by its managers, put full trust in the agent. If in this way the former were misled, or even fell into an innocent mistake, induced by the conduct of the managers or their agent, the latter cannot, after relieving the mechanics of the bridge, and entering upon the enjoyment of their labor, set up the misconception as a complete defence. To permit this would be to countenance iniquity, a consequence avoided by modern tribunals in their administration of the law of contract. Though Pomroy and Colony did refuse, in August, 1848, to add- the omissions pointed out by the managers, it was not, under the facts in proof, such a refusal as will operate to strip the plaintiffs of all redress. I feel it almost unnecessary to say that this conclusion is not to be affected by the stipulation for retaining 12J per cent, of the estimates until the completion of the work. The counsel, who argued for the plaintiff in error, seemed to think there is in this something of the nature of stipulated damages, founded in a precedent condition, which can only be discharged by a literal compliance with every minutia of the original contract. But it is nothing more than a retention of a portion of the earnings of the plaintiffs until the completion of the work, to answer any damages suffered—a thing very usual in contracts of this nature. Upon the whole case, as it is presented to us, we are satisfied the court below laid it fairly before the jury, under instructions justified by the law of contracts, as it is now understood. The jury have passed upon the respective rights of the parties, as thus explained to them, and from the small sum deducted from the plaintiffs’ demand, it is clear they entertained the opinion the defendant had been but slightly damnified by the sins of commission and omission imputed to the plaintiffs.

The bills of exceptions to evidence, taken on the trial, have not been argued. They were, very properly, abandoned as untenable. There is nothing in them which would bear examination.

Judgment affirmed.