Murphy v. Liberty National Bank

Citations

• 179 Pa. 295
• 36 A. 283
• 1897 Pa. LEXIS 635

Syllabus

<p>Contract — Building contract — Affidavit of defense.</p> <p>In an action to recover the final payment alleged to be due upon a building contract, it appeared that the building was to be finished to the satisfaction of the owners and their architect, and that the plaintiffs were to so complete and deliver the building that the owner would not be liable beyond a sum specified. A per diem penalty was provided for delay. The plaintiffs’ claim in the suit was under the contract for the whole contract price, and for extra work besides. The statement of claim admitted that a very important part of the work done by the plaintiffs was rejected by the architect, and was done by other parties; but asserted that this was due to a mistake oí the architect. The statement also made claim for extra work in contravention of the express terms of the contract. The statement admitted that there was a considerable delay in finishing the building, but alleged that this delay was owing to the defendant’s conduct. An affidavit oí defense was filed averring that the building had not been finished to the satisfaction of the architect and owner; that liens had been filed against it; that a heavy penalty had accrued against plaintiffs by reason of delay, and that only a certain sum specified which was much less than the amount claimed by plaintiffs was due for extra work. Held, that as it appears by plaintiffs’ statement that they did not perform all of the work, and did not finish it “to the satisfaction of the owners and architect,” and that there are active elements of dispute between the parties, the affidavit, while not very specific, was sufficient to prevent judgment.</p>