text:
    Pollock, Appellant, v. Standard Steel Car Company.

      Corporation — Master, and servant — Contract of employment — Treasurer.
    In an action against a corporation to recover compensation for negotiating a sale of cars manufactured by the corporation, the plaintiff is not entitled to recover, where it appears that he gave to the president of the company, with whom he negotiated for the cars, the impression that he was buying them for a customer of his own, that he said nothing to the president about compensation for himself, that the promise to pay him for his services was made by the treasurer of the company who had no authority whatever to make such an agreement, and that the company never ratified the agreement thus made.
    Argued Oct. 25, 1910. Appeal, No. 126, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1906, No. 677, for defendant non obstante veredicto in case of Thomas H. Pollock v. Standard Steel Car Company. Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover compensation for negotiating a sale of cars. Before Macfarlane, J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for plaintiff for $5,933. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant n. o. v.

      John C. Bane, for appellant.
    The question of the existence or nonexistence of the agency of Woods, was a question of fact for the jury: Lamb v. Irwin, 69 Pa. 436.
    Where a person is employed, by one assuming to act in behalf of a corporation, to render services for it, and he renders such services with the knowledge of and without objection on the part of its officers, the corporation will be held to have ratified the employment, and will be bound to pay for the services: Mesick v. United Collieries Co., 15 Pa. Superior Ct. 316; Zabriskie v. R. R. Co., 64 U. S. 381; Garrard v. R. R. Co., 29 Pa. 154.
    Neither an individual, nor an association, incorporated or unincorporated, can reap the fruits of an agent’s unauthorized contract, and, at the same time, repudiate the contract: Millward-Cliff Cracker Co.’s Est., 161 Pa. 157; Meyerhoff v. Daniels, 173 Pa. 555; Wayne Title & Trust Co. v. Schuylkill Electric Ry. Co., 191 Pa. 90; Woj-ciechowski v. Johnkowski, 16 Pa. Superior Ct. 444.
    January 3, 1911:

      George B. Gordon, with him Wm. Watson Smith, for appellee.
    Woods had no authority to make the alleged contract.
    Defendant never ratified the alleged contract: Twelfth St. Market Co. v. Jackson, 102 Pa. 269; Zoebisch v. Rauch, 133 Pa. 532; Merrick Thread Co. v. Mfg. Co*, 115 Pa. 314; Moore v. Patterson, 28 Pa. 505; Wright v. Burbank, 64 Pa. 247; Samuels v. Luckenbach, 205 Pa. 428; Johnson v. Steamship Go., 5 Cal. 408.
   Opinion by

Mr. Justice Brown,

Appellant’s claim against the appellee is for commissions alleged to be due on a sale of 300 of its cars to the George’s Creek Coal & Iron Company. The averment in his statement upon which he seeks to recover is that he was employed by the appellee to sell the cars to the coal and iron company and that L. G. Woods, the ap-pellee’s treasurer, made a verbal promise to pay him $15.00 for each car included in the order from the purchasing company. The claim is upon an express promise to pay a fixed sum for alleged services, and unless this was established at the trial, the plaintiff was not entitled to recover anything under the pleadings. The learned trial judge, in sustaining the motion for judgment for the defendant non obstante veredicto, was of opinion that, though the appellant had tried to secure the order for the 300 cars, he had failed to do so; but whether this conclusion, reached upon a review of all the evidence, was correct, is immaterial, for even assuming that he did procure the order, he failed to show any authority in Woods to bind the appellee to pay $15.00 for each ear included in the order from the coal and iron company or any ratification by it of its treasurer’s alleged act.

The negotiations between the appellant and appellee which led up .to what he contends was his contract with it, began with the following letter from him to it:

“Monongahela, Pa., Nov. 4, 1903.

“The Standard Steel Car Co.,

“Frick Bldg., Pittsburg, Pa.

“Mr. B. Wood:

“Dear Sir:

“I have been instructed by one of my customers who is operating a large Coal and Coke plant in W. Va. to procure prices and specifications on 250 Gondola Steel Cars and 100 large drop bottom steel hoppers. Would be pleased to talk to your Mr. Wood in regard to this matter at any time that he can arrange to meet me.

“Yours respectfully,

“T. H. Pollock.

“M.”

The next day J. M. Hanson, the president of the company, wrote and sent a telegram to the appellant, signed “L. G. Woods,” of which the following is a copy:

“Pittsburg, Pa., November 5, 1903.

“T. H. Pollock,

“Monongahela, Pa.

“Can see you to-morrow or Saturday or any other time you will let me know.

“L. G. Woods.”

Eleven days later — on the sixteenth of the month — the appellant called upon Woods, the treasurer of the company, and the substance of his testimony of what then and subsequently took place between them was that Woods introduced him to the president of the company to talk over the prices and designs of cars; that before being introduced to the president he was told by the treasurer to say nothing to the president about compensation; that the treasurer said this to him twice — the second time as they were about entering the office of the president; that he talked to the president, but said nothing to him to indicate that he expected any compensation; that he received prices from the president at which the company would sell 350 cars to the George’s Creek Coal & Iron Company, his customer; that after his interview with the president he again saw the treasurer, who promised to pay him $15.00 per car if he sold 350 at the price given him by the president; that the treasurer said nothing whatever to him about any authority to make this promise. From all that took place between the appellant and Hanson, the president of the defendant company, the latter was fully justified in regarding the former as the representative of the George’s Creek Coal & Iron Company. As to this the learned trial judge correctly said that the burden was upon him to clear up the misapprehension which he himself had created by writing about the instruction of his customer and by allowing himself to be introduced by the treasurer of the company to its president as an engineer who had a customer. He entirely failed to show any authority in Woods to make the contract upon which he would hold the company, and the affirmative uncontradicted testimony is that the treasurer had nothing whatever to do with the sale of the company’s cars, his duties, as defined by the by-laws, being confined to keeping the accounts of the receipts and disbursements of its moneys, of placing them to its credit in such depositories as might be designated by the board of directors and of keeping an account of stock registered and transferred in such form or manner as a board of directors might prescribe. The promise which the appellant alleges was made by him was no more binding upon the company as a promise by it than if it had been made by one of its subordinate employees.

But it is contended that even if Woods did not have any authority to bind the appellee by his promise to pay $15.00 for each car included in the order of the coal and iron company, his alleged act in making the contract with the appellant was ratified by the appellee. Ratification presupposes knowledge of all material facts connected with the act intended to be ratified, and the question of ratification cannot arise in the absence of proof that the principal had knowledge of such facts: Wright v. Burbank, 64 Pa. 247; Twelfth Street Market Co. v. Jackson, 102 Pa. 269; Merrick Thread Co. v. Phila. Shoe Mfg. Co., 115 Pa. 314; Zoebisch v. Rauch, 133 Pa. 532. A principal can, of course, ratify the unauthorized act of his agent without full knowledge of all material facts connected with it if he intentionally and deliberately does so, knowing that he does not possess such knowledge and does not care to make further inquiry into the matter; but such is not the present case, for there is no evidence that Hanson, the president of the defendant company, or any one connected with it except Woods, had any knowledge that the appellant claimed to be acting as its agent in the sale of the cars, much less that he was doing so in pursuance of a contract with it to pay him $15.00 per car.

The judgment for the defendant non obstante veredicto is, therefore, affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    A. & S. Wilson Company v. Reighard, Appellant.

      Pleading — Practice—Variance—-Statement of claim, — Evidence—In-debitatus assumpsit — Express contract.

    1. In an action to recover for labor and materials where the statement of claim contains the common counts in indebitatus assumpsit and on a quantum meruit and a detailed statement of the work done and materials furnished, the plaintiff is not defeated of his right to recover because at the trial he proves an express oral contract.
    2. At common law there was not a variance where an express promise not under seal and fully performed was proved under a declaration in indebitatus assumpsit. The rule has not been changed by the procedure act of 1887.
    Argued Oct. 25, 1910.
    Appeal, No. 128, Oct. T., 1910, by defendant', from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 373, on verdict for plaintiff in case of A. & S. Wilson Company v. D. P. Reighard.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for labor and materials. Before Kennedy, P. J.
    The plaintiff’s statement of claim was as follows:
    The A. & S. Wilson Company, the plaintiff above named claims of D. P. Reighard, the defendant above named, the sum of $1,324.95, with interest from June 1, 1903, and for a statement of its cause of action says:
    A. & S. Wilson Company, the plaintiff above named, is a corporation organized and existing under and by virtue of the laws of the commonwealth of Pennsylvania, and has its principal office and place of business in the city of Pittsburg, Pennsylvania.
    That at the instance and request of the defendant, the plaintiff, on or about June 1, 1903, furnished the materials and performed the labor specified in exhibit “A” hereto attached and made a part hereof. That the aforesaid exhibit is a true and correct copy of the account of the plaintiff with the defendant as taken from the plaintiff’s books of original entry; that the prices charged for the said materials and labor as shown upon said exhibit “A” are fair and reasonable and were the usual, ordinary and going prices for similar labor and materials at the time said labor was done and materials furnished by the plaintiff to the defendant, and that the defendant has promised to the plaintiff to pay the same.
    That at the instance and request of the defendant the plaintiff did, on or about June 1, 1903, perform other work and furnish other materials for the defendant, all of which are shown on exhibit “B” hereto attached and made a part hereof. That the prices charged in said exhibit “B” are fair and reasonable, and at the time said materials were furnished and labor done were the usual, ordinary and going prices for similar work and materials, and that the defendant promised to pay the same. That the defendant has paid to the plaintiff the sums of money at the time and in the amounts shown in exhibit “C” hereto attached and made a part hereof, but defendant is not entitled to any other credits and has not made any other payments.
    That the defendant, by his agent and architect, has accepted the work so done and materials so furnished by the plaintiff, and has agreed and acknowledged to the plaintiff that the prices set forth on exhibits “A” and “B” are fair and reasonable prices, and that the defendant owes the sum to the plaintiff.
    That the defendant is justly and truly indebted to the plaintiff in the sum of $1,324.95, with interest thereon from June 1, 1903, which amount the defendant has neglected and refused and still does refuse to pay, although payment has often been demanded by the plaintiff.
    Verdict and judgment for plaintiff for $1,838.36. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      W. A. Griffith, with him D. E. Mitchell and C. A. Lambie, for appellant.
    An examination of the proofs offered by plaintiff and the rulings of the court will show that plaintiff attempted to recover not only upon a quantum meruit, but upon an express parol contract that it was to furnish certain material and labor in the doing of certain work for defendant at cost plus ten per cent.
    We submit that since the passage of the procedure act of 1887 this is not permissible: Clark v. Lindsey, 7 Pa. Superior Ct. 43; Hale v. Hale, 32 Pa. Superior Ct. 37; Leh v. D., L. & W. R. R. Co., 30 Pa. Superior Ct. 396; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508.

      David A. Reed, of Reed, Smith, Shaw & Beal, for ap-pellee.
    This statement of claim was clearly sufficient under the procedure act of 1887: Bridgeman Bros. Co. v. Swing, 205 Pa. 479; Steelton Planing Mills Co. v. Kunkel, 20 Pa. Superior Ct. 72; Marshall v. Curry, 23 Pa. Superior Ct. 143; Kamber v. Becker, 27 Pa. Superior Ct. 266.
    January 3, 1911:
    The procedure act of 1887 being intended to diminish, not to increase, the technicality of our rules of pleading, plainly we are entitled to have our statement of claim construed as liberally as it would have been construed before the passage of that act'. The legislature did not intend to abolish all the well settled principles of pleading which were in force up to 1887: Kelly v. Foster, 2 Binney, 4; Miles v. Moodie, 3 S. & R. 211; Harris v. Ligget, 1 W. & S. 301; Eckel v. Murphéy, 15 Pa. 488.
   Per Curiam,

This action was to recover for labor and materials furnished for the completion of a building. The statement of claim contained the common counts in indebitatus as-sumpsit and on a quantum meruit and a detailed statement of the work done and materials furnished together with an item of profit of ten per cent on the cost. Various grounds of defense were set up by the affidavit of defense, but the employment was admitted and an express agreement to pay cost plus ten per cent was averred. At the trial the plaintiff proved an oral contract as averred by the defendant. It is claimed that there was a variance between the allegations and the proofs and that the plaintiff was not, under the pleadings entitled to recover on the express oral contract.

At common law there was not a variance where an express promise, not under seal, and fully performed was proved under a declaration in indebitatus assumpsit: Kelly v. Foster, 2 Binney, 4; Harris v. Ligget, 1 W. & S. 301; Eckel v. Murphey, 15 Pa. 488; Brown v. Foster, 51 Pa. 165. In the case last cited it was said: “However anomalous it may seem that the law should imply a promise when there is an express one, it is no longer to be doubted that when the work stipulated to be done by an unsealed written contract has been fully completed, there may be a recovery in general indebitatus assumpsit for its value.” The statement of claim was sufficient under the procedure act of 1887: Bridgeman Bros. Co. v. Swing, 205 Pa. 479; and the evidence was admissible under it.

We find no merit in any of the assignments of error and the judgment is affirmed.


author: Mr. Justice Moschzisker,

text:
    Graeser’s Estate.

      Decedents’ estates — Assets—Liquor business — Good will — Licenses— Executors and administrators.

    1. The value of good will taken in connection with a continuance of a well-established licensed liquor business, is, when ascertained, an asset of a decedent’s estate, even though the original license itself was a mere personal privilege which did not pass to his representatives.
    2. Where the administratrix of the estate of an insolvent liquor dealer takes over the business, good will and fixtures, and the license is transferred first to herself, and subsequently to her second husband, the value of the good will is an asset of the estate, and the finding by the orphans’ court of such value in money, when based upon sufficient evidence, is a finding of fact, which will not be disturbed by the Supreme Court in the absence of manifest error.
    Argued Oct. 26, 1910.
    Appeal, No. 129, Oct. T., 1910,' by Annie M. Graeser, now Annie M. Watkins, Adminis-tratrix, from decree of O. C. Allegheny Co., Feb. T., 1910, No. 100, dismissing exceptions to adjudication in Estate of Philip Graeser, deceased.
    Before Bkown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    Miller, J., stated the facts to be as follows:
    Philip Graeser died October 14, 1908; he owned and conducted a licensed hotel or saloon at No. 124 Wabash avenue, in the city of Pittsburg; he bought the land and buildings, license, good will and stock from the former owner who had been a licensed vender there for twenty-eight years, in July, 1907,- for about $17,000, of which the license, fixtures, stock and third-floor furnishment, exclusive of the real estate, was valued at $8,600; the daily receipts of the bar at that time averaged $50.00.
    Following Graeser’s death, his widow, the accountant, had the license duly transferred to herself individually; she took, possession of the stock of liquors and fixtures and continued to operate and conduct the place as her husband had done in his lifetime. In March, 1909, she applied for and was' granted a new license, paying the fee of $1,000 from the funds of this estate. Later she remarried, and removed from the premises, but owns and conducts the same as in the former manner under some delegated management. She asserts that she holds the premises, license, good will, etc., now and has continued to hold them as trustee for Graeser’s creditors.
    In the inventory filed by her as administratrix, the stock, license and bar fixtures are valued at $1,115.15, with which she charges herself in the present account. The decedent’s debts as proven exceed $10,000, consisting largely of unpaid liquor accounts. In August, 1909, she was offered $8,500 for the place, exclusive of the real estate, including the license, stock, good will and fixtures, which she accepted, but for some reason the transfer was refused by the quarter sessions court. The daily receipts have been from $20.00 to $35.00; there is testimony estimating the value of this good will and license of the place at from $3,000 to $4,000, assuming the transferee should retain possession as a licensed vender of liquors.
    The court surcharged the accountant with $5,384.85.

      Error assigned was the decree of the court.

      "E. W. Arthur, with him J. M. Magee and W. S. Thomas, for appellant.

      January 3, 1911:

      Charles Mitchell, for appellee,
    cited: Mueller’s Est., 190 Pa. 601.
   Opinion by

Mr. Justice Moschzisker,

The appellant states the question involved to be, “Should the value of a retail liquor business and fixtures be accounted for by an administratrix, who, after ineffectual efforts to sell it, continued the business of her deceased husband as her own?”

The appellant charged herself with a value of $1,115.15. The orphans’ court adjudged the value inadequate and surcharged the accountant with a difference of $5,384.85. In making this surcharge the court properly said, “That the value of good will taken in connection with a continuance of a well-established licensed business .... when ascertained, is an asset of a decedent’s estate, even though the original license itself was a mere personal privilege and does not pass to his representatives, is well settled in a line of cases.” These cases are all reviewed in Aschenbach v. Carey, 224 Pa. 303.

The decedent’s estate was insolvent, and the appellant took over the business, good will and fixtures; the license was transferred to her, and subsequently to her new husband, who now holds it. Under these circumstances, when the issue was raised, it was for the orphans’ court to decide whether or not the accountant had charged herself with the full value of the good will, business and fixtures. Upon the evidence before him, the learned auditing judge found that she had not, and determined that their real value was $6,500. This is a finding of fact which under our rulings will not be disturbed unless manifest error is apparent. A careful review of the evidence fails to convince us of any such error.

Counsel for the appellant explains in his printed argument, “It will be noted that throughout the proceedings in this estate, the term 'license’ is used .... as synonymous with ‘business’ or ‘good will.’ It is not contended by either side that the license as such had any value, but only as was said in Buck’s Est., 185 Pa. 57, that 'The opportunity to secure a transfer of the license and a renewal at the end of the year may materially affect the value of the fixtures and good will.’ . . .”

The assignments of error are overruled and the decree of the orphans’ court is affirmed.


author: Mr. Justice Stewart,

text:
    Tarentum Water Company, Appellant, v. Tarentum Borough.

      Corporations — Water companies — Boroughs — Contract—Conditional contract.

    1. Where a water company, in pursuance of the power conferred upon it by the legislature and without any inducement by the authorities of 'a borough, enters upon the borough’s streets and proceeds to furnish water generally to the public, and subsequently the borough enters mto a-qontract with the company by which the latter agrees to furnish water for municipal purposes, and agrees, as a consideration for the privilege of supplying such water, not to charge the inhabitants of the borough any excess over the rates it had theretofore been charging, such a contract does not preclude the borough from subsequently furnishing its own supply of water for its inhabitants.
    2. Ordinarily it is to be assumed when a contract expresses distinctly the common purpose of the parties that it expresses the whole purpose. The proper rule in such case would refer whatever stipulations the contract contains to the purpose of the contract as defined, and construe it accordingly.
    Argued Oct. 26, 1910.
    Appeal, No. 131, Oct. T., 1910, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 1,059, dismissing bill in equity in case of Tarentum Water Company & Allegheny Valley Water Company v. Tarentum Borough.
    Before Brown, Mes-trezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to enjoin the defendant from constructing waterworks.

      Shaper, J., found the following facts:
    1. The Tarentum Water Company was incorporated December 1, 1885, for the supply of water in the borough of Tarentum, its charter not being recorded, however, until September 21, 1887. The Allegheny Valley Water Company was incorporated on April 7, 1906, and the Tarentum Water Company, on August 9, 1906, transferred all its property and franchises to the Allegheny Valley Water Company, under the Act of April 17, 1876, P. L. 30.
    The defendant is a borough, operating under the general borough law.
    2. The Tarentum Water Company began the laying of lines of pipe for the supply of water to the inhabitants of the borough of Tarentum just after the recording of its charter, and by the year 1892 it had laid eight or ten miles of pipe in the borough, and during that time it supplied water to the public in the borough. This was done under its charter powers without any communication, so far as appears, with the borough, or any contract with it.
    3. On January 8, 1892, an ordinance was passed by the borough council, authorizing a contract with the Tarentum Water Company for the purpose of providing water for the public and to private consumers in the borough. The ordinance provided for a contract with the water company for a period of five years, for furnishing water to the borough for a certain number of fire plugs at a fixed rate, and further provided for an agreement that the water company should furnish water to consumers in the borough at the rate it was then charging until its gross annual revenue from the borough should amount to 810,000 or upwards, and that thereafter it should furnish the consumers in the borough at the rates then charged by the Sharpsburg Water Company, and giving the borough an option at the end of five years to renew the contract for either five or ten years. The contract between the borough and the water company was executed and delivered in accordance with this ordinance.

      4. The fire plugs provided for in the contract were then installed, and thereafter the water company made a certain extension of its lines, and improvements as to the source and quality of its water supply.
    5. No other water company has been incorporated to furnish water in the borough of Tarentum, nor has the borough a water plant of its own. The Tarentum Water Company and its successor, the Allegheny Valley Water Company, have been supplying water in the borough for public and private uses since the making of the agreement above mentioned without any renewal of the contract, or the making of any additional contract.
    6. The gross annual revenue of the water company from the borough of Tarentum, at and before the time of the filing of the bill, was more than $10,000.
    7. On April 27, 1908, the council of the borough passed an ordinance submitting to the voters a proposition to increase the indebtedness of the borough in the sum of $100,000 for the purpose of erecting a municipal waterworks. An election was held on June 16, 1908, which resulted in favor of the increase of the indebtedness proposed, and the borough claims the right under this vote to erect waterworks to supply water for public use and for private consumers, and proposes to do so.
    The court entered a decree dismissing the bill.

      Error assigned was decree dismissing the bill.

      W. B. Rodgers, with him John S. Cort, for appellants.—
    A contract having been entered into, and the water company having furnished water thereunder, the power of the borough to build its own works was exhausted: White v. Meadville, 177 Pa. 643; Metzger v. Beaver Falls Boro., 178 Pa. 1; Troy Water Co. v. Troy Boro., 200 Pa. 453; Potter County Water Co. v. Austin B,oro., 206 Pa. 297.

      Nelson McVicar, of Kennedy, McVicar & Hazlett, for appellee.

      January 3, 1911:
   Opinion by

Mr. Justice Stewart,

The questions on which this case was made to turn in the court below, and which were argued on this appeal, assume that the purpose of the borough of Tarentum in entering into the contract of 1892 with the Tarentum Water Company, one of the appellants, was to provide a supply of water for the use of the inhabitants of the borough. If the assumption should be found unwarranted, these questions become unimportant and the discussion of them unnecessary. When a contract expresses distinctly the common purpose of the parties, it is to be assumed that it expresses the whole purpose. The proper rule in such case would refer whatever stipulations the contract contains to the purpose of the contract as defined, and construe it accordingly. Now, the purpose of this contract, as expressed in the contract itself, was to “provide such water as may be necessary for fire protection and other borough purposes,” thus limiting the purpose to the supply of municipal wants, as distinguished from the wants of the general public. The provision of the contract which is supposed to widen the purpose, is a stipulation that the water company is to furnish water to the general consumers “at the present water rates charged, until its gross annual revenue from the borough shall amount to 810,000 or upwards, in which case the water company is to furnish water to the citizens of the borough at the present rates charged by the Sharpsburg Water Company.” Under the rule of construction as above stated, this stipulation is not to be regarded as an independent covenant, but is to be referred to the purpose defined in the contract, and is to be regarded either as a condition, or as whole or part of the consideration. Suppose however that the purpose expressly defined in the contract makes the contract, taken as a whole, equivocal as to the purpose, and we resort to matters extrinsic to find the true purpose. It then becomes clear that what the borough was bargaining for was not a supply of water to the inhabitants, since the water had already been, and was then being supplied, but solely with respect to rates of a supply already furnished. Before the contract in question was entered into, and without any authority derived from the borough, the water company had occupied the streets of the borough with its pipes, had fully completed the erection of its system, and was at the time supplying water to all who demanded it. This it had done, and was doing, not at the invitation of the borough, not pursuant to any contract with the borough, but in the exercise of power which was conferred on it by the legislature, and which was supposed to make the company wholly independent of the borough. So far as appears it did not expend a dollar under the contract here considered. How under such circumstances can it be said that this was a contract to provide the inhabitants of the borough with water? Without this contract the company would have continued to supply water to the inhabitants, for that was the purpose of its organization, and its only source of revenue. Had the borough offered inducements to its organization, and encouraged it to expend its money upon the understanding that it was to have the privilege of furnishing a water supply to the inhabitants, the case might present a different aspect; but it did nothing of the land. It found a company furnishing water; it wanted a supply for municipal purpose, and stipulated with the company that an acceptance of the latter’s1 offer to furnish water for municipal purposes was conditioned on its promise not to increase its rates when it furnished water to the inhabitants. The law authorizes boroughs to provide a supply of water for the use of the inhabitants, but the doctrine asserted in all our cases is that this power is to be exercised by a borough in one of two ways, either by erecting a plant of its own, or by contracting with a water company; and that the adoption of either is an exhaustion of the power. Can it be supposed for a moment that the understanding with respect to the contract under consideration was, that it was to express a choice between methods? Certainly there is nothing to indicate that the borough so understood it; and if so understood by the defendant, what equity had it to assert its understanding against the borough? It has done nothing, expended nothing, yielded nothing, because of its understanding of the contract. To hold that the borough, under such a contract as we have here has precluded itself from furnishing its own supply of water for its inhabitants, would be to carry the doctrine of our cases beyond reason. Giving the contract the most favorable construction for the appellant, we can see nothing in it so far as the supply of water to the inhabitants is concerned, but simply an obligation on the part of the company not to charge in excess of the rates it had theretofore been charging, in consideration of the borough securing from it water for municipal purposes. Nor can we regard it as an expression of choice by the borough between methods it is allowed to adopt for furnishing water to the inhabitants. The court very properly dismissed the bill. The decision rested on considerations not here adverted to. The conclusions of the court with respect to these may or may not have been correct. We decide nothing as to this; but for the reasons here stated we affirm the decree dismissing the bill, and accordingly dismiss the appeal.


author: Mr. Justice Elkin,

text:
    Osterling v. Carpenter, Appellant.

      Contract — Evidence—Architect’s plans — Charge of jury — Trial appeals —Practice—Reversal of judgment — Remittitur—Venire facias.

    1. In an action by an architect to recover renumeration for various plans, including a plan for a station, it is error to permit a recovery for the station plan where it appears that although in the letter from the plaintiff to defendant submitting a proposal, there was mention of a station plan, the letter in reply did not refer to the station plan, and there is nothing in the evidence to show that the plaintiff ever submitted the station plan, or that the defendant had ever approved one, or agreed to pay for the same, and it also appears that the contract set up by the plaintiff called for remuneration on a commission basis, while the item claimed on account of the station plan was on a quantum meruit.
    January 3, 1911:
    2. In such a case it is also error to permit the plaintiff to recover commissions for plans of a tomb which was to cost $70,000 where the evidence shows that while .the parties may have originally contemplated a $70,000 tomb they subsequently agreed on plans for a $40,000 tomb, and that the plans actually prepared and accepted were for a tomb not to exceed in cost $40,000, the actual cost of the tomb as erected and that under the agreement the architect’s commission was to be computed on the cost of the completed tomb.
    3. The Supreme Court in reversing a judgment on a verdict which included the compensation for the station plan, and commissions on a $70,000 tomb, awarded a venire facias de novo unless the plaintiff within ten days after the remitting of the record should file a stipulation agreeing to remit the item of the station plan, and commissions on the cost of the tomb in excess of $40,000 with interest, and further directed that if such remittitur was filed final judgment should then be entered for the plaintiff for the amount so ascertained.
    Argued Oct. 26, 1910.
    Appeal, No. 50, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1905, No. 826, on verdict for plaintiff in case of F. J. Osterling v. Reese Carpenter.
    Before Brown, .Mestrezat, Potter, Elein, Stewart and Mosch-zisker, JJ.
    Reversed.
    Assumpsit on a contract. Before Brown, P. J.
    The opinion of the Supreme Court states the. case.
    Verdict and judgment for plaintiff for $3,937. Defendant appealed.

      Errors assigned were various instructions.

      Wrn. E. Schoyer, of Lyon & Hunter, for appellant.

      John S. Ferguson, for appellee.
   Opinion by

Mr. Justice Elkin,

This is peculiarly a case of controverted facts. There is a dispute as to whether any contract was entered into in the first place, and if such a contract were made, the parties do not agree upon what basis the contractual obligation may be determined. When parties fail to reduce their contracts to writing and cannot agree upon the terms thereof, it is difficult for courts to determine with legal accuracy the liability of the contracting parties. Such cases are for the jury and this is one of them. The first assignment relates to the item of $200 claimed for preparing station plans. The letters of December 20, and January 11, relied upon as the basis of the contract, do not warrant the inference that the preparation of station plans were authorized by appellant. It is true station plans were mentioned in the letter of appellee submitting a proposal for the consideration of appellant, but in the letter of acceptance nothing is said about station plans. The only inference to be drawn being that appellant eliminated station plans from the contract and limited the work to be done to the preparation of plans, specifications and detail drawings for the tomb, also the making of water color pictures. There is nothing in the evidence to show that appellee ever submitted such station plans for the approval of appellant, or that he had approved them at any time, or that he had agreed to pay for the same. Again the contract set up calls for remuneration upon a commission basis while this item is claimed on a quantum meruit. The positions are inconsistent and as we view the record there is not sufficient evidence to sustain this item of claim on either ground.

We do not agree with the second contention of appellant, which is, that upon the whole record judgment non obstante veredicto should be entered for defendant. There was ample evidence to sustain a recovery in some amount and the only question to be determined is as to the cost of the tomb which was the basis fixed by the contract to ascertain the amount of the commission. Ap-pellee claims upon the basis of a $70,000 tomb, while appellant contends that if he is required to pay any commission it must be computed upon a total cost of $40,000. This is a disputed point and not free from difficulty. The learned court below left it to the jury, but upon an examination of the evidence and a careful consideration of the charge, we have concluded that the instructions did not accurately state the contentions of the parties or correctly define the law applicable to the facts. It must be remembered that the letters offered in evidence constitute the contract and these letters make no mention of the estimated cost of the tomb to be erected. Indeed, it is clear that at the time the letters were written the parties themselves had no definite amount in view as to the total cost of the tomb. This appears throughout the whole letter of appellee submitted as a proposal for the purpose of getting the work. The acceptance was simply an authorization to proceed with the preparation of plans, no amount of cost being specified. Appellee, it is true, testified to the understanding, that the plans, specifications and drawings contemplated a $70,000 tomb, and that he proceeded upon this basis. But before the plans were completed appellant notified appellee by letter dated February 1, 1901, of his conclusion to build a tomb not to exceed in cost $40,000 and the testimony shows that the plans and drawings were changed to provide for the erection of a tomb at this reduced cost. Appellee testified that after receiving the letter last mentioned he abandoned his work in the preparation of plans for a $70,000 structure and changed the drawings so that the tomb should not exceed in cost $40,000. He also admitted that he made no objection to this change of plans. The letter submitting the proposal for the work suggests that the fee of the architect: “be based upon the lowest and best bid which may be received, in case you award and contract for the entire contract with one party or in case you should sublet the various parts of the work or should undertake to do the work with your own mechanics, the cost to be based upon actual bids which may be received, rather than upon the cost as it should develop in doing the work yourselves.” The acceptance stipulated that, “I shall build the tomb by days’ work and will keep account of the cost of all material and labor and pay you five per cent on the outlay and $75.00 for water color.” As to the commission the proposal and the acceptance constitute the contract. The architect was to be paid five per cent on the total cost of materials and labor. This certainly contemplated a completed tomb and the cost of the same was to be the basis upon which the commission was to be computed. The cost of the tomb erected was $40,000, and not $70,000, and appellee made no objection to the change of plans but proceeded to furnish plans, specifications and drawings for the $40,000 tomb, after receiving the letter so directing. We cannot interpret the contract and the facts relied on to sustain it in any other light than that appellee acquiesced in the change and performed his part of the covenants by furnishing completed plans, specifications and drawings for a $40,000 tomb. He is therefore entitled to a commission on this basis. The instructions to the jury failed to submit this question in a manner sufficiently clear to aid them in forming a correct judgment as to the terms of the contract and to assist in the application of the facts relating to the commission. Under these circumstances we have concluded there must be a reversal. Whether there shall be necessity for a new trial depends upon the attitude of appellee. If he is willing to accept the amount of the judgment as entered less the item of $200 and his commission upon the estimated cost above $40,000 there is no reason why this may not be done. We will, therefore, make the order accordingly.

Judgment reversed and a venire facias de novo awarded unless appellee within ten days after this record is remitted shall file a stipulation agreeing to remit the item of $200, and the commission on the estimated cost in excess of $40,000 together with such interest as may have been added on account of these items in the verdict, in which event the court below is directed to enter final judgment for the amount so ascertained.


text:
    Clark’s Estate.
    January 3, 1911:

      Trusts and trustees — Trust ex maleficio.

    Where a bank holds as collateral for a loan the stock of a corporation, and also the guarantee of the president of the corporation, the loan being to another party, and the guarantor submits to the bank, at its request, a statement of the financial condition of Ms company, in wMch he neglects to include an indebtedness to himself which is afterwards paid, and the bank makes no extension or additional loan on the strength of the statement, and thereafter the guarantor dies, the bank cannot claim that the decedent’s administrator held any portion of the money paid to it on account of his indebtedness as a trustee ex maleficio for the bank.
    Argued Oct. 26, 1910.
    Appeal, No. 145, Oct. T., 1910, by Bank of Pittsburg, from decree of O. C. Allegheny Co., June T., 1909, No. 192, dismissing exceptions to adjudication in Estate of T. Lee Clark, deceased.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication. Before Miller, J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      T. C. Campbell, with him James S. Campbell, for appellant.

      John S. Wendt, with him Trimble & Chalfant, for ap-pellee.
   Per Curiam,

In 1902 and 1903 the Pennsylvania Development Company became largely indebted to the Merchants’ & Manufacturers’ National Bank, now- the Bank of Pittsburg, National Association. This indebtedness was guaranteed by T. Lee Clark, the decedent, and two others, and secured by certain collaterals, among which were 500 shares of the capital stock of the Moundsville Water Works Company. At the request of the president of the bank, made September 28, 1904, the Pennsylvania Development Company submitted a written statement of the financial condition of the Water Works Company, signed by Clark as its president. This statement was not correct, for it omitted a liability of the company to Clark for $18,603.08, which sum his administrator subsequently collected, and the contention of the appellant is that, as it held one-half of the capital stock of the Water Works Company as collateral security for the said indebtedness, one-half of the said sum of $18,603.08 ought to be declared as a trust fund held by the appellee for its benefit, to be awarded to it as belonging to the stock pledged to it by Clark. In other words, the contention is that, in view of Clark’s concealment of the Water Works Company’s indebtedness to him in the statement signed by him as to its financial condition, one-half of the said indebtedness subsequently collected is impressed with a trust ex maleficio for the benefit of the appellant. The court below properly refused to sustain this, and its decree is affirmed upon the following portion of the opinion of the learned auditing judge: “No loan, no new thing of value passed from the bank when this alleged misrepresentation took place; no extension of time was asked for, none was agreed to; what the parties could then have done cannot now be alleged as having been done. The fund for distribution was not obtained from the Bank of Pittsburg in any manner; the bank neither parted with its money nor extended credit to the Moundsville Waterworks Company, whereby said company incurred the liability to pay Clark for this debt; no relationship is shown between the debt due Clark from the Moundsville Waterworks Company, and the moneys which the Bank of Pittsburg, N. A., loaned to the Pennsylvania Development Company; this alleged trust property does not appear to have belonged to the claiming trust creditor when the alleged misrepresentation took place: Cavin v. Gleason, 105 N. Y. 256; the alleged fraud has not been shown to have adhered from the beginning of the transaction: Grove v. Kase, 195 Pa. 325; nothing subsequently said will create such a trust: McCloskey v. McCloskey, 205 Pa. 491; Berlinger v. Lutz, 179 Pa. 1. The debt owing Clark from the Waterworks Company was in no way enlarged or enriched by the alleged fraud of Clark upon the Bank of Pittsburg, N. A., and in the absence thereof, no approach for a finding of a trust ex maleficio exists.”

Decree affirmed at appellant’s costs.


author: PeR Curiam,

text:
    Fidelity Title & Trust Company of Pittsburg, Appellant, v. West Side Belt Railroad Company.

      Railroads — Taking of land — Statute of frauds — Oral agreement.

    Where a railroad company takes an acre of land for railroad purposes, and the owner/upon discovery of the taking, insists that the railroad company shall purchase all of the balance of the plot of which the acre was a part, and the company orally agrees to purchase such balance at a certain amount per acre, but never takes possession of such balance, nor pays any part of the purchase money, the statute of frauds will bar any recovery from the railroad company on its agreement. In such a case the owner’s only remedy is by the statutory proceeding for compensation for the land taken under the right of eminent domain.
    Argued Oct. 26, 1910.
    Appeal, No. 138, Oct. T., 1910, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., July T., 1906, No. 765, for defendant non obstante vere-dicto in case of Fidelity Title & Trust Company of Pitts-burg, Administrator of Estate of Mary J. Wilson, deceased, and Flora J. Kenny v. West Side Belt Railroad Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for purchase money of land. Before Sha-fer, J.

      January 3, 1911 :
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for plaintiff for $13,100.30. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      H. V. Blaxter, of Lazear & Blaxter, for appellants.

      James B. Miller, of Patterson, Sterrett & Acheson, for appellee.
   PeR Curiam,

In the latter part of 1902 the West Side Belt Railroad Company entered upon and took about an acre of land belonging to Mary J. Wilson and Flora J. Kenney, for the purpose of making a connection with the Baltimore & Ohio railroad. Some months later this was discovered by an agent of the owners of the land, and he immediately made complaint of wfcat had been done to the vice president and general manager of the railroad company, who referred him to its chief engineer for a settlement. Upon the suggestion by that officer that the company would pay for the land taken, the agent declined to settle on that basis, insisting that the balance of the plot, which consisted of about sixteen acres, had been injured by the taking of the one acre. Negotiations were then commenced looking to a purchase of the entire seventeen acres by the company. These negotiations were pending for about a year, when a verbal agreement, according to the evidence submitted by the plaintiffs, was made by the railroad company to purchase the entire tract for $550 an acre, and the present action was brought to recover this purchase money. One of the defenses set up Was that the statute of frauds barred a recovery, and this was sustained by the court below in entering judgment for the defendant non obstante veredicto. Our examination of all the evidence in the case has satisfied us that nothing was shown by the plaintiffs to take the sale out of the statute. Nothing by way of performance was done by the railroad company after the agreement was made. It neither took possession of the sixteen acres nor paid any part of the purchase money. The one acre had been taken under the right of eminent domain nearly two years before the alleged agreement to purchase was made, and the owners have their statutory remedy for compensation for its taking. The tender of a deed to the appellee was ineffectual to make the sale valid, for the writing was not accepted: McClintock v. South Penn Oil Co., 146 Pa. 144.

Judgment affirmed.


text:
    Coles’s Case.

      Married women — Husband and wife — Feme sole trader — Appeals— Certiorari — Evidence.
    1. An appeal by a husband from an order of court declaring his wife a feme sole trader is to be treated merely as a certiorari.
    2. An averment in a petition by a married woman to have herself declared a feme sole trader, of her husband’s desertion of her, gives the court jurisdiction.
    3. Where on a petition by a married woman to have herself declared a feme sole trader it appears that the husband had due notice of the hearing, and two responsible witnesses satisfy the court of the propriety of the petitioner’s application, the action of the court in granting the petition wall not be reversed. In such a case the question as to whether the wife was a competent witness is immaterial, and will not be considered by the appellate court, and this is especially so where no objection was made as to her competency in the lower court.
    Argued Oct. 26, 1910.
    Appeal, No. 139, Oct. T., 1910, by Noah Coles, from decree of C. P. No. 1, Allegheny Co., March T., 1909, No. 732, declaring a woman a feme sole trader In re Petition of Josephine A. Coles.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition to declare a woman a feme sole trader.
    The petition was as follows:
    The petition of Josephine A. Coles respectfully represents :
    That she is the wife of Noah Coles, to whom she was married on October 22, 1903, and that she resides at and owns real estate at No. 5640 Rural avenue in the city of Pittsburg, Allegheny county, Pennsylvania, and also owns other real estate in said city:
    Petitioner avers that her husband, the said Noah Coles, deserted your petitioner on or about January 19, 1908, and since said time petitioner has never seen or heard from said Noah Coles, and the said Noah Coles since said date has neglected to provide for your petitioner, his wife.
    Wherefore your petitioner prays that your honorable court will make a decree and grant her a certificate that she shall have all the rights and privileges seemed to a feme sole trader as provided by the Act of assembly of May 4, 1855, P. L. 430.
    Noah Coles, petitioner’s husband, filed an answer denying the desertion, and supported this denial by his testimony at the hearing.
    The court granted the petition.

      Error assigned was order granting the petition.

      John D. Watson, with him Haven V. Wolf, for appellant.
    The court erred in taking jurisdiction of said matter because, under said petition, the court was without jurisdiction to make said order: Cleaver v. Scheetz, 70 Pa. 496.
    Josephine A. Coles was not a competent witness in this case: Cañóle v. Allen, 222 Pa. 156.
    The court erred in finding from the testimony given that Noáh Coles had willfully and maliciously deserted his said wife, Josephine A. Coles, and had willfully refused and neglected to support her: Weiler v. Greiner, 34 Legal Int. 13; King v. Thompson, 87 Pa. 365.
    January 3, 1911:

      Robert B. Petty, Jr., with him R. B. Petty and Wm. F. Petty, for appellee.
   Per Curiam,

In a proceeding instituted by Josephine A. Coles, under the Act of May 4, 1855, P. L. 430, the court below made a decree securing to her the privileges of a feme sole trader, and from it her husband has taken this appeal. His appeal, if he had a right to take it, is to be treated merely as a certiorari. As to his objection that the court erred in taking jurisdiction, it is sufficient to say that in addition to the appellee’s averments in her petition that she was the wife of the appellant and the owner of real estate, there is jurisdictional averment of his desertion of her. This was sufficient to give the court jurisdiction; and it further appears from the record that, before the court granted her a certificate, it had appeared that due notice of the hearing of the application had been given to the husband and that the court had been satisfied by the testimony of at least two responsible witnesses of the justice and propriety of the petitioner’s application. This met every requirement of the fourth section of the act.

The second objection of the appellant is that his wife •was not a competent witness. No objection was made to her competency when she was called and examined; but, aside from this, two other witnesses were called, who testified that the husband had not lived with her for more than a year before her application was filed.

Decree affirmed at appellant’s costs.


author: Mr. Justice Mestrezat,

text:
    Morgan v. Gamble, Appellant.

      Appeals — Assignments of error — Charge—Points.
    1. An assignment of error to a portion of the charge which fails to quote the portion of the charge of which complaint is made, violates rule 30, and will not be considered.
    2. Assignments of error to answers to points, which do not set out the answers violate rule 30, and will not be considered.

      Contract — Building contract — Failure to comply with specifications.

    3. Where a contractor of a building agrees to construct two gas lines, one for natural gas, and one for artificial gas, he will not be relieved from constructing both lines, because artificial gas was not in use in the town in which the building was being constructed.
    4. Where a building contractor agrees to put in a particular flue lining, and to use a particular kind of paint for tin work, he will not be excused from using the specified lining and the particular paint designated, because the lining and the paint which he did use were equally as good as those for which the contract called.
    5. Where a building contractor agrees to lay an extra strong lead water pipe, and he substitutes therefor an iron pipe, he will be required to allow to the owners in a suit upon the contract, not the difference between the iron and lead pipes, but the cost of laying a lead pipe as provided in the agreement.
    6. Where a building contract provides that the owners may retain out of any payment due the contractor the amount of any lien or claim, for which the owner of the premises may become liable, the contractor will be required to allow, in a suit on the contract, the amount of a mechanic’s lien filed against the owner, and on which a scire facias had been issued.
    7. In an action upon a building contract an amended statement of claim offered in evidence is properly rejected where there is no offer to show that the amended statement was in any way contradictory of anything that the plaintiff had stated in the original affidavit.

      Practice, C. P. — Amendments—Rules of court — Appeals.
    8. Where objection is made to the amendment of a statement of claim on the particular ground that it was contrary to the rule of court regulating amendments, and the lower court allows the amendment, the appellate court will not reverse the judgment because of other objections to the amendment raised for the first time on the appeal.

      Contract — Building contract — Performance.
    9. Where a building contract provides that the materials furnished and work performed shall be to the satisfaction of the owner, it is the duty of the contractor to perform to the satisfaction of the owner, and if the owner’s objections are real and genuine and'not unreasonable or capricious, they must be sustained.

      Contract — Substantial -performance — Province of court and jury.

    10. The equitable doctrine of substantial performance is intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertent or unimportant omissions or defects. It is incumbent on him who invokes this protection to present a case in which there has been no willful omission or departure from the terms óf his contract. If he fails to do so, the question of substantial performance should not be submitted to the jury.
    Argued Oct. 26, 1910.
    Appeal, No. 140, Oct. T., 1910, by defendants, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 819, on verdict for plaintiff in case of E. S. Morgan v. P. T. Gamble and Emma M. Gamble.
    Before Bkown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Sci. fa. sur mechanic’s claim. Before Evans, J.
    At the trial a witness for plaintiff was asked this question:
    “Q. How many lands of gas are there in the Borough of Avalon?”
    Mr. Stevenson: Objected to as entirely incompetent and irrelevant. The contract called for two lines. It makes no difference how many kinds of gas.
    Mr. Miller: If there was only one kind of gas, there was only necessity for one set of pipes.
    The Court: I don’t think that is material, however, I will hear the testimony.
    Objection overruled.
    Exception allowed and bill sealed. [2]
    “A. Just one gas, that is the natural only.”
    Mr. Miller: “Q. Is there any other gas there at the present date? A. No, sir. Q. For which gas did you put the pipes in? A. For the natural. Q. And how far had the general work on the house progressed when you put those gas pipes in? A. Well, just to a point where we had to put it before the floors were laid. Q. Had all the plastering and lathing been done? A. No plastering done at that time. Q. When did you put in the water pipes? A. At the same time — at the same time.”
    The Court: Well, would there be any reason why that house could not be piped for the other gas after it was completed?
    “A. Yes, sir, the floors would have to be lifted. Q. Well, could it be done? A. Yes, sir, it .could be done.”
    Mr. Miller: “Q. What would it cost to do that? A. Well, now I have not figured that at all. Q. What could you see with reference to the quality of the chimney?”
    Mr. Stevenson: He admits there is no flue lining there. I renew my objection. What it would cost to put it in is immaterial and irrelevant.
    Objection overruled.
    To which ruling of the court counsel for the defendant requests an exception.
    Exception allowed and bill sealed. [3]
    Mr. Miller: “Q. As far as you could see? A. As far as I could see the chimneys are good chimneys. Q. Could flue linings be put in? There are only two chimneys. Could flue linings be put in those chimneys now? A. Well, the straight ones could. Q. The straight flues? A. Yes, sir. Q. Well, are they straight or are they not straight? A. I didn’t examine them. I wasn’t that close.”
    The defendant made the following offers:
    “Q. What, if anything, was said or agreed upon between you and Mr. Morgan as to the dimensions to be followed in building this frame house? A. The frame house was to be put — ”
    Mr. Miller: I object to this as incompetent, irrelevant and immaterial. It is in the written contract.
    The Court: What is the purpose of this testimony?
    Mr. Stevenson: I propose to show by the witness on the stand Mr. Morgan would not have gotten this contract unless he agreed to make a complete job of it, and that included the running of the water pipes and the sewer out to the street, and that it was expressly agreed that the dimensions to be followed for this frame house were to be the outside dimensions.
    The Court: I sustain this objection.
    Mr. Miller: Objected to as incompetent and irrelevant as attempting to vary a written contract.
    Objection sustained.
    To which ruling of court counsel for defendant requests an exception.
    Exception allowed and bill sealed. [4]
    "Q. What, if anything, was said, at the time, before the time the contract was given in regard to an architect?”
    Objected to.
    Objection sustained.
    To which ruling of court counsel for defendant requests an exception.
    Exception allowed and bill sealed. [5]
    Mr. Stevenson: This contract states that it be done at the direction of Mrs. Gamble and there has been testimony here as to her being down there, and I propose to show that at the time and before the contract was signed Mrs. Gamble proposed to get an architect and that Mr. Morgan said to her, "It is not necessary.”
    Objected to as incompetent, irrelevant and immaterial.
    Mr. Stevenson (to Charles W. Klicker): “Q. What would it cost to-day to put in a five-eighths-inch extra heavy lead pipe and run it under the ground to the point indicated on the plan as compared with the manner in which it has been put in, to-day? ”
    Mr. Miller: I object to that because this pipe is at present in use and the owners could have changed it.
    Objection sustained.
    To which ruling of the court counsel for defendants request an exception.
    Exception allowed and bill sealed. [6]

      Mr. Stevenson: “Q. Did you make any examination as to the cost of putting in the new line of gas pipe, or just the plumbing? A. Yes, sir, I did.”
    The Court: I told you yesterday that their measure of damages was the difference between the value of the pipe and the value of the lead pipe as called for by the specifications and not what it would cost to take it up and put in the other.
    Mr. Stevenson: If the court please to make that the measure of damages there is no use taking up time proving it.
    The Court: I told you that, and I give you an exception. [7]
    Mr. Stevenson: I offer in evidence the record of a lien filed against Emma M. Gamble at No. 46, October Term, 1906; sci. fa. issued to No. 425, July Term, 1907; amount of claim, $34.50, with interest from March 31, 1906; costs taxed to date $10.12.
    Mr. Miller: Objected to, as it has nothing to do with this case.
    Mr. Stevenson: It is a lien filed by a subcontractor, and the contract provides that if the defendants have notice of any lien they are obliged to deduct it from the contract price.
    Objection sustained.
    To which ruling of the court counsel for defendants request an exception.
    Exception allowed and bill sealed. [8]
    Mr. Stevenson: I offer in evidence the amended affidavit of claim in this case, and the plaintiff’s reply to specifications to set off, for the purpose of showing that the plaintiff, Morgan, after our affidavit of defense was filed, denies or sets up no alteration or change in the contract whatever.
    Objected to.
    Objection sustained.
    To which ruling of the court counsel for defendants request an exception.

      Exception allowed and bill sealed. [9]
    A witness for the plaintiff was asked the following questions:
    “Q. You did the tin painting in this house? A. Yes, sir. Q. What sort of paint did you use? A. Princess’s Metallic paint. Q. That is not an Acme Anti-Rust paint. A. No, sir. Q. How does the quality of the paint you used compare with the paint known as Acme Anti-Rust paint?”
    Mr. Stevenson: I object to the testimony, for the reason that the contract calls for Acme Anti-Rust paint and no reason has been shown why it was not put on.
    Objection overruled.
    To which ruling of the court counsel for defendants requests an exception.
    Exception allowed and bill sealed. [10]
    Verdict and judgment for plaintiff for $3,238.40. Defendants appealed.

      Errors assigned were (1) allowance of amended statement of claim; (2-10) rulings on evidence, quoting the bill of exceptions; (11-20) various instructions.

      M. H. Stevenson, for appellants.
    This amendment changed the issue and was in plain violation of sec. 51, Act of June 4, 1901, P. L. 431.
    It has been repeatedly held that the doctrine of substantial performance covers defects or omissions only if slight or unintentional: Hayward v. Leonard, 24 Mass. 180; Anderson v. Petereit, 93 N. Y. Sup. Ct. 600; Liggett v. Smith, 3 Watts, 331; Wilhelm v. Caul, 2 W. & S. 26; Chambers v. Jaynes, 4 Pa. 39; Danville Bridge Co. v. Pomroy, 15 Pa. 151; Sticker v. Overpeck, 127 Pa. 446; Gallagher v. Sharpless, 134 Pa. 134; Phila. v. Pemberton, 208 Pa. 214; Zimmermann v. Jourgensen, 77 N. Y. Sup. Ct. 222; Woodward v. Fuller, 80 N. Y. 312.
    While work done under a Contract which stipulates that it is to be satisfactory to one of the parties cannot be rejected from mere caprice, still a bona fide objection is a good defense to an action thereon, and it is not sufficient to show that such party ought to have been satisfied: Singerly v. Thayer, 108 Pa. 291; Krum v. Mersher, 116 Pa. 17; Seeley v. Welles, 120 Pa. 69; Sidney School Fur. Co. v. School Disk, 130 Pa. 76; Stutz v. Coal & Coke Co., 131 Pa. 267; Howard v. Smedley, 140 Pa. 81; Kennedy v. Poor, 151 Pa. 472; Delahunty Dyeing Machine Co. v. Knitting Mills, 19 Pa. Superior Ct. 501; Meacham v. Gardner, 27 Pa. Superior Ct. 296; McNally v. Jenkinson, 35 Pa. Superior Ct. 288.
    January 3, 1911:

      Frederic W. Miller, of Robb & Miller, for appellee,
    cited on the question of substantial performance: Liggett v. Smith, 3 Watts, 331.
   Opinion by

Mr. Justice Mestrezat,

This case comes before us in a very unsatisfactory condition. Some of the material and most important questions cannot be reviewed because the assignments of error are in violation of the rules of court. We have said time and again that such assignments will not be considered. We have twenty-one assignments presented for consideration, less than one-half of which would have been entirely sufficient to raise all the material questions in the case. Had the time required for the preparation of these assignments been devoted to the preparation of the lesser number, there can be little doubt that the rules of court would have been observed and the important questions would have been properly presented for review.

The fifteenth assignment violates rule 30 in failing to quote the part of the charge assigned for error, and assignments sixteen to twenty inclusive violate the same rule in omitting to quote the answers to the points. Assignments seventeen to twenty must also be dismissed because the points for charge request binding instructions.

This was a scire facias on a mechanic’s claim to enforce the payment of a balance alleged to be due the plaintiff for the construction of a house in Avalon borough, Allegheny county. The work was done under a written contract, the first article of which provides that “the contractor under the direction and to the satisfaction of the owner .... shall and will provide all the materials and perform all the work mentioned in the specifications.” The defense was that the plaintiff had not completed the work to the satisfaction of the owner or in substantial compliance with the contract. The trial resulted in a verdict for the plaintiff for the amount of the claim with a deduction of about $250 besides the credits admitted.

The second, third and tenth assignments and the objection to the parts of the charge bearing on the matters therein contained must be sustained. It was wholly immaterial how many kinds of gas there were in the borough of Avalon. The contract specifically provided that the contractor should construct the two gas lines and the fact that artificial gas was not in use in Avalon did not relieve him from this stipulation of the agreement. For the same reason the testimony should have been excluded as to the flue linings in the chimneys. The contract required the plaintiff to put the flue lining in, and it was conceded that he had not done so, nor were there any reasons given why he did not comply with this part of his agreement. The contract also provided that Acme Anti-Rust paint should be used for the tin painting, but in direct violation of this provision of the agreement the plaintiff used Princess’s Metallic paint. He does not assign any reason for a change in the paint but offered and was permitted to show on the trial that the paint he used was as good as that provided in the agreement. The defendants had a right to insist upon the substantial performance of these express stipulations of the contract and the plaintiff was not relieved from this duty by reason of the fact that there was only one kind of gas in the borough, that a differently constructed chimney was equally as good as that stipulated for, or that the paint used by the plaintiff was of the same or a better quality than that provided in the agreement. As said by Mr. Justice Sterrett in Gillespie Tool Co. v. Wilson, 123 Pa. 19, 26: “In neither of these particulars, nor in any other respect, was there any serious difficulty in the way of completing the work in strict accordance with the terms of the agreement.” The question was not whether one gas line and a different flue lining and paint would answer as well as those required by the agreement, but whether the work done and materials furnished were a substantial performance of the contract.

The fourth assignment must be dismissed. The offer made by the counsel for the defendants, in addition to what otherwise might have been competent, included matter which tended to contradict that part of the written agreement which, it was not pretended, had been altered or changed by the parties.

The fifth assignment is not sustained. The matter proposed to be proved was entirely immaterial. It could not affect the case in any way. The fact, if it be a fact, that Air. Morgan suggested to Mrs. Gamble that an architect was unnecessary does not change his liability on his contract under the facts of the case as disclosed by the evidence.

The evidence, the rejection of which is complained of in the sixth assignment, should have been received. The contract provides that the plaintiff shall lay an extra strong lead water pipe, and the contractor substituted an iron pipe. tJnless we hold that the contractor had the right to thus change the specific stipulation in the agreement and use his own judgment instead of that of the defendants as to the pipe to be laid, we must require bim to pay to the defendants, not the difference between the iron and lead pipes, but the cost of laying a lead pipe as provided in the agreement. This is the proper measure of damages: Wade v. Haycock, 25 Pa. 382; Sticker v. Overpeck, 127 Pa. 446. The same principle sustains the seventh assignment.

' The contract provides that the owner may retain out of any payment due the contractor the amount of any lien or claim for which the owner of the premises may become" liable. The defendants offered in evidence the record of a lien filed against Mrs. Gamble and on which a scire facias had been issued. The court rejected the offer, for what reason does not appear, nor can we conceive. The eighth assignment is sustained. -

The offer of the amended affidavit of claim, the rejection of which constitutes the ninth assignment of error, did not propose to show that it in any way was contradictory of anything that Morgan had stated in the original affidavit. Had it done so the evidence would have been competent: 2 Wigniore on Evidence, sec. 1067. The assignment is dismissed. "

The defendants’ objection to the amendment of the affidavit of claim was manifestly not made on the ground that it offended the mechanic’s lien law, but that it was contrary to the rule of court regulating amendments. We must rule on the specific objection made at the trial: Danley v. Danley, 179 Pa. 170. If the objections now taken to the amendment had been made in the court below at the time they were offered, we would have a different question before us. Possibly the learned judge would have ruled differently had those objections been made. The court below is the best judge of its own rules and, seeing no plain error in allowing the amendment, the first assignment must be overruled-.

We do not deem it necessary to notice specially any of the other assignments of error. As, however, the case goes back for a retrial, it may not be out of place to suggest that over and beyond the- question of substantial performance is whether the contract was complied with to the satisfaction of the owner. That question seems to have been lost sight of in the trial of the cause. The reason may be attributable to the manner in which the defendants’ case' was presented. The contract provides that the contractor shall furnish all the materials and perform all the work to the satisfaction of the owner. We have uniformly upheld such contracts and required their observance. Under a contract of that character it is the duty of the contractor to perform to the satisfaction of the owner, and that is the standard by which the sufficiency of the work is to be tested. It is not for the court or the jury to determine whether the work is being done in compliance therewith, but solely for the owner to determine, and with his decision the contractor must comply. Of course the dissatisfaction of the owner which will defeat a recovery by the contractor must be real and genuine and not one prompted by caprice or bad faith or for the purpose of evading payment of the balance due the contractor. If the objections made by the owner are bona fide and not unreasonable or capricious they must be sustained. The question is generally for the jury, but, the evidence may be such as to require the court to withdraw the case from the jury.

If, as the case is presented on the next trial, the question of substantial performance is to be determined, the. court should give explicit instructions to the jury on the subject, defining clearly what is required to sustain a claim of that character. In Gillespie Tool Co. v. Wilson, 123 Pa. 19, this court, by Sterrett, J., said (p. 26): “The equitable doctrine of substantial performance is intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertent, or unimportant omissions or defects. It is incumbent on him who invokes this protection to present a case in which there has been no willful omission or departure from the terms of his contract. If he fails to do so, the question of substantial performance should not be submitted to the jury.”

The defendants suggest the insufficiency of the charge in certain respects. If any specific instructions were desired, the court should have been requested to give them. The good faith of the party in becoming dissatisfied with the contractor’s work like the question of substantial performance is generally one for the jury, and requests for instruction on the subject should not always conclude by asking for binding instructions. Usually a case does not turn on a single proposition and unless it does and that is controlling, a point should not conclude with a request for binding instructions. On the trial below, the defendants seem to contest the plaintiff’s claim on the ground of their dissatisfaction with the work done and materials furnished and because of the failure to complete the work in substantial compliance with the contract. As the case was presented, we cannot say that both questions were not for the jury.

The judgment is reversed with a venire facias de novo.