Kann v. Bennett , 223 Pa. 36 ( 1909 )

Opinion by

Mr. Justice Potter,

The defendant in this case entered into a written contract with the plaintiff for the erection of a residence, in accordance with the plans and specifications .of an architect, and under the direction and to the satisfaction of the latter. The plaintiff alleged that the defendant failed to prosecute the work with due diligence, and that he was thereby justified under the terms of the contract in taking the work out of defendant’s hands and finishing it himself. And that having done so, he was entitled to recover the amount necessarily expended by him in excess of the contract price, in completing the contract. The defendant contended that this action upon the part of the plaintiff was high-handed and entirely without justification; and he denied that the plaintiff had any right to take possession of and finish the building, and claimed that upon a reasonable and just settlement a balance was due him upon the contract.

Upon the trial the verdict of the jury was in favor of the plaintiff. The defendant has appealed, and his assignments of error relate entirely to the admission of certain matters in evidence, and to portions of the charge.

In construing the contract the trial judge held that the burden was on the plaintiff to satisfy the jury by the weight of the evidence, that the defendant had neglected, or refused, or failed to comply with the contract; and with this view counsel for appellant find no fault. They do complain, however, that the trial judge instructed the jury to give the plaintiff the benefit of all sums expended by him in the completion of the house, without considering the necessity for the outlay, and the good faith of the expenditures.

Under the theory upon which the case was tried, the important question which lay at the threshold of the inquiry was whether the defendant had failed to furnish a sufficient number of skilled workmen, and proper materials for the erection of the house, and whether he had prosecuted the work with due diligence. In attempting to establish the contention of the plaintiff in this respect there were offered and, as counsel for defendant claim, erroneously admitted in evidence, two letters from the architect to the defendant, written during the progress of the work, in which complaint was made of the unsatisfactory and dilatory way in which it was alleged the defendant was proceeding. The letters set forth a number of specific grounds of dissatisfaction. Under the contract, the architect was made the agent of the owner, and these letters must therefore be regarded as the letters of the plaintiff, written in his behalf by his agent. They set forth an argumentative presentation of the plaintiff’s contention, and there seems to be nothing in the record to show that they were actually received, or were ever replied to in any manner by the defendant. The letters therefore amounted to nothing more than declarations by the plaintiff in his own behalf, and as such they should not have been admitted in evidence: Dempsey v. Dobson, 174 Pa. 122; Huckestein v. Kelly & Jones Co., 139 Pa. 201; Fraley v. Bispham, 10 Pa. 320.

The trial judge also admitted in evidence, against the objection of defendant’s counsel, certain schedules attached to the statement of claim, for the purpose of showing the statement of the account of the plaintiff against the defendant. In overruling the objection to their admission, the court below said: “These schedules are admitted as some aid to the jury in understanding the case, and because they are part of the pleadings in the case.” The fact that the schedules were part of the pleadings Would not render them admissible in evidence on behalf of the party who filed them. As to him they were merely self-serving declarations which should not be allowed to affect the rights of his adversary. The correctness of the various items of charge set forth in the schedules was denied as a whole by the defendant in his affidavit of defense; and many of them were taken up item by item, and their correctness in the amount stated, denied in whole or in part. So that the schedules amounted to nothing more than plaintiff’s own assertion of what was due to him. We think they should have been excluded as evidence.

Nor are we satisfied that there was any sound basis shown for the admission of proof of the rental value of the house as one of the elements of damage to the plaintiff. At the time when the plaintiff took possession of the building and proceeded upon his own account to carry it forward to completion, more than six weeks yet remained of the period within which the house was to have been completed by the defendant. It does not appear but that the defendant, if he had been permitted to do so, might have put on sufficient force to complete the building within the required time; nor was it shown why the plaintiff, after he took possession, did not complete the work within the time limit. In Crawford v. Becker, 13 Hun (N. Y.), 375, it was held that where the owner takes possession of a building and completes it himself, he thereby waives his right to claim from the contractor the damages provided for in the contract for a failure to complete the building by a specified time. In the present case no attempt was made to claim the liquidated damages stipulated for in the contract in case of delay, and it was incumbent upon the plaintiff to furnish proof of his actual loss, if any, in this respect. It is apparent from the contract and the testimony, that the building was intended for a residence, and no loss to the plaintiff was shown from the delay in getting it ready for occupancy as such.

In the fifth assignment of error, complaint is made that the trial judge permitted plaintiff’s counsel,' against objection on the part of the defendant, to examine the witness Callen upon the contents of a letter which had not been offered in evidence, and permitted him to read an extract from such letter. This was clearly in violation of a fundamental rule of evidence. “It is not allowed, on cross-examination, in the statement of a question to a witness, to represent the contents of a letter, and to ask the witness whether he wrote a letter to any person with such contents, or contents to the like effect; without having first shown the letter to the witness and having asked him whether he wrote that letter; because, if it were otherwise the cross-examining counsel might put the court in possession of only a part of the contents of a paper, when a knowledge of the whole was essential to a right judgment in the cause. If the witness acknowledges the writing of the letter yet he cannot be questioned as to its contents, but the letter itself must be read:” 1 Greenleaf on Evidence (Lewis’ Edition 1896), sec. 88. If counsel for plaintiff desired to show the contents of the letter, and to cross-examine upon it, he should have identified it, and offered it in evidence, and if admitted, introduced it as part of his cross-examination.

The sixth, seventh and eighth assignments of error relate to the portions of the charge referring to the computing of the damages. If counsel for defendant desired more specific instructions in this respect, they should have submitted points. In affirming the plaintiff’s ninth point, his right to charge for finishing the house was restricted to the reasonable cost and expense incurred by him in the process. But if counsel for defendant desired that the attention of the jury should be more specifically or emphatically directed to the requirement that in reaching a verdict they must be satisfied from the evidence not only that the expenditures in completing the house were actually made as claimed, but that the outlay was reasonably necessary to complete the building in accordance with the plans and specifications, and that the outlay was made honestly and in good faith, then it was the duty of counsel to frame points for charge accordingly, and submit them to the court to be given to the jury.

The first, second, third, fourth and fifth specifications of error are sustained, and the judgment is reversed, with a venire facias de novo.