Huckestein v. Kelly & Jones Co.

Citations

• 152 Pa. 631
• 25 A. 747
• 1893 Pa. LEXIS 1031

Syllabus

<p>Mechanics’ lien.s — Release of liens — Defalcation—Practice.</p> <p>Where a building contract provides that the balance of the contract price shall be paid only on receipt of releases' from all parties furnishing labor and materials, it is no objection to a recovery by the contractors that a lien was filed against the building and reduced to judgment. In such a case one judgment may be set off against the other,, and the court will adjust the amount actually due the contractors when execution is issued upon their judgment.</p> <p>Written agreement — Parol evidence.</p> <p>In an action upon a building contract defendants claimed as an offset the liquidated damages per day provided by the contract for delay in executing the work. Plaintiffs averred that the inducement for signing the contract was a promise by defendants to put in a railroad siding to facilitate the work, and that defendants had failed to put in the siding for four or five weeks. Declarations of defendants and their architect to third parties as to the terms of the contract were admitted to corroborate the direct testimony of plaintiffs. Held, that the evidence was rightly admitted, and that the case was properly submitted to the jury.</p> <p>Letter written by plaintiff — Making evidence.</p> <p>A letter, written by plaintiff' to defendants shortly after the execution of the contract and before there was any appearance of delay in performance of the work, complaining of the failure of defendants to put in the siding, is admissible. As it was not post litem motam it cannot be excluded as an effort to make evidence.</p> <p>Building contract — Dispute—Architect’s findings.</p> <p>A building contract provided that the architect should decide all questions as to work omitted. A dispute arose as to the supply of some rosin. The architect’s finding on the question was an item in the credits as follows: “By amount retained until rosin filling is properly put under floors, or until ascertained by whose fault