Emrey v. Regar , 54 Pa. Super. 67 ( 1913 )

Opinion by

Head, J.,

The plaintiff sues to recover a balance alleged to be due him under the terms of a written contract for the erection of a dwelling for the defendant. The plaintiff, by the terms of that contract, was to obtain from various subcontractors estimates for furnishing material and performing. the labor necessary in the construction of several portions of the building according to the plans and specifications. In this respect he was, as the contract provides, the agent of the defendant, who reserved the right to accept or reject the estimates and award the subcontracts. The work not covered by these subcontracts was to be done by the plaintiff. He further undertook “to superintend the erection and construction of the said building in accordance with the plans and specifications and to enforce the contracts entered into by and with the consent and approval of the said Regar.” Under the specifications which were a part of the contract between the parties it was further stipulated that the plaintiff “at his own expense shall provide a watchman whose duty it shall be to carefully watch the building through the night and in the day-when the workmen are absent from the building.” The plaintiff was to be paid for the discharge of th§ several obligations imposed on him by the contract under the terms of that provision in which the defendant “agrees to pay the said Emrey for his compensation in the erection of the said building a sum equal to ten per cent of the total cost of the erection of the said building excluding paper hanging and gas fixtures.” This compensation was to be paid in the following manner: “$250.00 when the roof is sheathed in, $250.00 when the building is whitecoated, and the balance within thirty days after the building shall have been completed and accepted. . . . Whereupon all bills for work done or materials furnished in and about the erection and construction of the said building shall be calculated and the total thereof ascertained,” etc. The two partial payments, $250.00 each, have been made, and the present action is to recover the balance of the compensation alleged to be due the plaintiff under the terms of the contract quoted.

It is apparent we think that the cost of construction on which the plaintiff’s percentage was to be calculated was to be ascertained and determined on a final settlement after the completion of the building. Partial payments made by the defendant during the process of construction on any account would not have the legal effect of estopping him to avail himself of his right to have the question finally determined after the completion of the building.

When it became apparent during the progress of the work that the actual cost of the building would run con-' siderably above its estimated cost, disputes began to arise between the parties as to the manner in which the plaintiff was discharging his duties under the contract. The chief of these perhaps was the allegation by the defendant that the plaintiff was neglecting to furnish the superintendence which he had undertaken to do and that he was surcharging the time sheets and pay rolls with the wages of foremen, thus requiring the defendant to pay for what the plaintiff had agreed to furnish. In the statement for the month of April there appeared a charge for wages for one Rank, a foreman. The amount of this charge was deducted by the defendant from the amount of the statement and the balance of it was paid and accepted by the plaintiff. On the back of this statement the defendant testifies that he wrote the following agreement or stipulation to settle the dispute that had been pending: “May 4, 1910. Mr. Emrey: — As per our understanding, I have deducted all wages paid Foreman Rank from this bill amounting to $7.70; Milne & Smith wages in' full to be deducted at time of final settlement.” To this is attached this memorandum: “O. K. (Signed) J. P. Emrey.”

The first and chief ground of defense arises on the effect of this stipulation or agreement. The defendant contends that he had been wrongfully required to pay about $600 in the wages of' these two foremen which should never have been charged to him; that this sum should not only form no part of the cost of the dwelling on which the plaintiff’s percentage was to be calculated, but that he should be credited with the money so paid as against the plaintiff’s claim for the balance of this compensation. The plaintiff denies he signed the memorandum of agreement in the form in which it appears. If the fact were material this of course presented an issue for the jury. The only reason advanced why it would not be material is the allegation that, even if it were signed, there was no legal consideration to support the plaintiff’s agreement that the wages complained of should be deducted on final settlement. If proven to have been made we think "such an agreement was not an accord but a compromise and is as binding as any other contract.” Per Mitchell, J., in Flegal v. Hoover, 156 Pa. 276.

The next defense is that defendant was wrongfully charged with about $150 of wages paid to the watchman, who, under the terms of the contract, was to be employed and paid by the plaintiff. These two items amount to more than the balance of the compensation that would be due to the plaintiff on account of his percentage. The defendant therefore argues that he has paid to the plaintiff all that he owes, and in fact has overpaid him, and to the extent of that overpayment he demands a certificate of balance.

The learned trial judge held that it was not competent for the defendant to make defense along the lines indicated and directed a verdict for the plaintiff for the amount that would be apparently due him in the absence of any defense. In this we think he fell into error. The defendant was not attempting to set off against the claim of the plaintiff some debt or damages due and owing to him from the plaintiff. He was first of all availing himself of the right secured to him by the contract to have the cost of the building, and the whole of that cost, ascertained and determined after its completion. He was not precluded because of the partial payments he had made from the full exercise of his contract right. When that would be ascertained by the deduction from the plaintiff’s claim of any and all items wrongfully entering into the aggregate cost, then the defendant under his plea of payment with leave was entitled to show, if he could, that he had already advanced to the plaintiff more money than should have been demanded, and therefore that nothing further was due. And if the moneys thus advanced would appear to have exceeded the plaintiff’s claim for compensation, we can see no good reason why such excess should not be refunded in a certificate of balance. For these reasons we think the case was tried on the wrong theory and that the learned judge fell into error in instructing the jury to find a verdict for the plaintiff as if no legal defense had been advanced.

The judgment is reversed and a venire facias de novo awarded.