Kapailo Manufacturing Co. v. Fay

Citations

• 55 Pa. Super. 564
• 1914 Pa. Super. LEXIS 12

Syllabus

<p>'Contract — Building contract — Subcontractor — Delay — Affidavit of defense.</p> <p>1. In an action by a subcontractor against the contractors for a municipal building to recover a balance alleged to be due for materials and work, an affidavit of defense is insufficient which sets up as a defense a delay in the completion of the work without any showing that the work was to be completed at a specified date, or that the delay was an unreasonable one.</p> <p>2. In such a case an averment in the affidavit of defense that the defendants were “penalized” under their contract with the city by reason of the plaintiff’s delay, is insufficient where no averment is made as to the time when, or the manner in which the defendants were penalized, nor whether the action of the city was solely because of the failure of the plaintiff to complete the work on a date mentioned by the defendant; nor is an averment sufficient which states that the work was not commenced within two weeks after the date of the contract where there is no averment that the failure to begin at the time stated produced unnecessary or unreasonable delay in the completion- of the work.</p> <p>3. Where a subcontractor fails to begin work at the time specified in the contract, .the contractor is not obliged to accept the performance thereafter, but if he does so he waives his right to object to the delay.</p>