Gillison v. Wanamaker

Citations

• 140 Pa. 358
• 27 W.N.C. 424
• 21 A. 361
• 1891 Pa. LEXIS 848

Syllabus

<p>(a) A building contract stipulated that the contractors should pay $5 per day, as liquidated damages for any delay in completion after September 1, 1888, and that the owner might direct additions or alterations in writing, whereupon such further time should be allowed as the architect might decide reasonable; no alterations or additions to be paid for unless so directed.</p> <p>(5) The contract provided, also, that no work should be considered extra, unless an estimate for the same, in writing, had been submitted to and signed by the architect or owner; and that any question in the settlement of accounts should be submitted to the architect, whose decision should be final. The contractors, in suing on the contract, averred:</p> <p>(c) That, at the request of the architect, extra work was done to the amount of $244.83; that the work was finished before November 1, 1888, and, after its completion, the architect approved it and gave “ a certificate of approval, showing a balance of $698.08 due by defendant to plaintiffs,” on presentation whereof to the defendant he refused to pay said sum.</p> <p>(d) The affidavit of defence averred that certain parts of the extra work were never authorized, but were done in defendant’s absence and without his knowledge; that the work was not completed for forty-two days after September 1,1888, and the defendant claimed to set off $210 damages therefor, and also $2 as the value of two shovels carried off by the plaintiff:</p> <p>1. It was error to enter judgment for want of a sufficient affidavit of defence, for the full amount of the plaintilfh’ claim: (a) The statement of claim did not aver that any estimate of extra work had been submitted and signed, and the architect had no power to impose upon the defendant, ex post facto, an obligation to pay for work not previously ordered or authorized;</p> <p>2. (5) As the statement of claim admitted delay in performance, without averring the allowance of additional time, or that the matte