Hunn v. Pennsylvania Institution for the Instruction of the Blind

Citations

• 221 Pa. 403
• 70 A. 812
• 1908 Pa. LEXIS 496

Syllabus

<p>Contract — Building contract — Performance—Time—Forfeiture—Allegata and probata — Architect.</p> <p>Where a building contract provides for a penalty in case of non-completion within the time specified, and also contemplates final completion by the owners in certain contingencies with the settlement with the contractors after such completion, an averment of complete performance by the contractors is, in so far as the construction of the building is involved, sustained by proof which shows that the contractors performed a large part of the work, and that the building was finally completed by the owners in accordance. with the contract, although not within the time specified. In such a case when the owners completed the building, the day of final settlement had arrived, subject, of course, to the respective rights of the contracting parties as defined by the contract.</p> <p>The law recognizes the right of parties to a contract to stipulate the method of arbitrating questions that may arise between them in the performance of mutual covenants, but no such right exists in the absence of an express covenant, and he who asserts it has the burden of establishing its existence.</p> <p>The usual arbitration clauses in building contracts refer to questions arising between the contractors and owners, and not questions that concern the performance of duties by the architects themselves. Such clauses are in derogation of the common-law right of trial by jury, and are not to be extended beyond the express covenants of the contracting parties.</p> <p>An arbitration clause, such as is usually inserted in a building contract, is not to be construed as showing an intention of the parties to deliberately enter into a covenant providing that the arbiters should have the right to pass upon and finally determine questions involving their own failure in the performance of duties.</p> <p>Where, under the terms of a building contract, the owners after part performance by the contractors,