Emrey v. Regar

Citations

• 54 Pa. Super. 67
• 1913 Pa. Super. LEXIS 14

Syllabus

<p>Contract — Building contract — Payments—Accounting.</p> <p>In an action by a contractor for a balance alleged to be due under a building contract, it appeared that by the terms of the contract the plaintiff was to obtain bids for material and labor, and submit them to the defendant who was to award the subcontracts. The work not covered by the subcontracts was to be done by the plaintiff, who also undertook to superintend the erection and construction of the building. It was further stipulated that the plaintiff was to employ a watchman. The plaintiff was to receive for his compensation an amount equal to ten per cent of the total cost of the erection of the building, payable in three installments, the last within thirty days after the building had been completed. Two payments were made during the course of the construction of the building. The defendant claimed that plaintiff charged him for the wages of a watchman, and for the wages of two foremen who did the work which plaintiff agreed to do himself. When one of the payments was made on account defendant noted on the bill a deduction for the watchman’s wages, and further stated that the foreman’s wages were to be deducted at the time of final settlement. Plaintiff beneath this statement wrote the letters “O. K.” and signed his name. Held, (1) that the cost of the building on which plaintiff’s commission was to be calculated was to be determined on final settlement; (2) that the partial payments did not estop defendant to have the question of the commissions determined after completion of the building; (3) that the agreement as to the deduction of the foreman’s wages was a compromise, and as such binding as a contract; and (4) that the deductions claimed by the defendant were not matters of set-off requiring notice, but matters of defense which could be properly shown under the plea of payment.</p>