McKallip v. Altoona

Citations

• 265 Pa. 192
• 108 A. 408
• 1919 Pa. LEXIS 523

Syllabus

<p>Contracts — Municipal contract — Reservoir — Substantial performance — Extra world provisions — Rescission—Waiver—Estoppel —Retained percentage — Principal and surety.</p> <p>1. A contract for the construction of a reservoir for a city provided that all rock encountered in making the necessary excavations for the core-wall, was to be taken out. The excavation of this rock was to be paid for at a certain unit price per yard. It was supposed that there would he enough loose stone from such excavations to make the facing and the riprap for the inner slope of the reservoir. It turned out however that there was not sufficient loose stone for the work, and the contractor was obliged to go beyond the lines of the reservoir and blast rock from the hillside at an additional expense. It was not denied that the contractor was hound to furnish this material to complete the facing and riprap. He claimed, however, that he was entitled for this work, the unit price of rock excavation as specified in the contract. The city claimed that this work was taken care of under the extra work clause which provided that extra work or material was such extra work or material as the contractor was required to perform or furnish, and for which no definite price per unit was fixed in the contract. Meld, (1) that the construction placed upon the contract by the city was correct; (2) that the contractor had no right to decline to proceed with the work because of the city’s refusal to accept his construction of the contract; (3) that the doctrine of substantial performance had no place, inasmuch as the reservoir was not in any sense completed until the facing and riprap were in place; and this was the case although a small part of the reservoir might he used.</p> <p>2. In such a case the fact that the city had waived its right to rescind the contract because of the noncompletion of the work within the time limit, did not estop it from thereafter rescinding the contract when the contractor refuse