Shires ex rel. Shaylor v. O'Connor

Citations

• 4 Pa. Super. 465
• 1897 Pa. Super. LEXIS 147

Syllabus

<p>Contract — TSntire contract.</p> <p>A contract which has for its object “ to cut and peel the hemlock timber standing or lying upon certain land, to cure the bark and load it on the cars; to. trim and cut the timber into log lengths and to deliver on the banking grounds on or before a given date ” is an entire contract. It was one undertaking, though made up of several items; there was one price, though for convenience, because the work was to be paid for as-it progressed it was to be apportioned to the sevérai items, and there being a further stipulation reserving ten per centum until the completion of the contract, does not affect the entirety of the contract.</p> <p>Contract — Substantial performance — Question for jury.</p> <p>The question of substantial compliance with a contract is one for the jury and the jury was correctly instructed on the modern equitable doctrine, that if there had been substantial compliance with the contract the plaintiff would be entitled to recover if a few items had been overlooked, in the case at bar, if a few trees were left uncut and a limited number of logs were undelivered.</p> <p>Measure of damages — Contract—Substantial performance.</p> <p>The measure of damages for a partial failure of a contract, if found by the jury to have been substantially performed, is the loss, if any, which the defendant has sustained on that part of the contract work remaining uncompleted.</p> <p>Evidence — Offers based on comparisons and opinions inadmissible.</p> <p>On a question of substantial performance, evidence is properly excluded which instead of presenting facts from which the jury could judge of the completeness of plaintiff’s work contained comparisons with other similar jobs in the neighborhood and the mere opinions of witnesses.</p> <p>Practice, C. P. — Refusal to grant exceptions — When not arbitrary.</p> <p>A refusal to grant an exception is not arbitrary when based on the following reason given: “We decline to give any more except