Bigham v. Wabash-Pittsburg Terminal Railway Co.

Citations

• 223 Pa. 106
• 72 A. 318
• 1909 Pa. LEXIS 486

Syllabus

<p>Contract — Illegal contract — Change of grade or road. — Municipal and property owners’ consent.</p> <p>1. The fact that a contract involves the change of grade of a public road, and that the consent of the municipality and of the property owners is necessary to the accomplishment of the work under the contract, does not make the contract void and illegal ab initio. The presumption is that such consent had been obtained or could be secured, and in either event the contract would be perfectly valid.</p> <p>Contract — Breach of contract — Measure of damages.</p> <p>2. In an action to recover damages for the breach of a contract it appeared that the defendant, a railroad company, needed a place to dump earth. The plaintiffs having such a place, the parties entered into an agreement by which the defendant secured a license or privilege to deposit on plaintiffs’ land so much earth, estimated at 150,000 cubic yards, as would be necessary to make a certain grade agreed upon. When the defendant had deposited about half the amount of earth estimated it stopped work. Held, that the measure of damages for the breach of the contract was the difference in value of the plaintiffs’ lands with the fill completed, and as it was at the time of the breach, with the fill only partially made.</p> <p>3. In such a case it is error to permit the plaintiffs to recover an amount determined by multiplying the difference between the number of cubic yards actually filled and 150,000 cubic yards, by the estimated cost per cubic yard.</p> <p>4. In such a case where the defendant denies any obligation to fill plaintiffs’ property with 150,000 cubic yards, it is not necessary for it to specifically deny its obligation to furnish the difference between the number of cubic yards actually filled and 150,000 cubic yards, as alleged in the statement of claim. The denial of the defendant’s liability to furnish the greater amount necessarily includes the lesser, and is sufficient to put upon plaintiffs