Wood v. Malone

Citations

• 131 Pa. 554
• 18 A. 984
• 1890 Pa. LEXIS 1140

Syllabus

<p>[To be reported.]</p> <p>(a) The defendants being contractors for the construction of a city sewer, the plaintiffs engaged to make and furnish the pipe required therefor. By plaintiffs’ testimony the pipe was to be shipped by canal, should navigation be open when the pieces were completed; otherwise, by the Pennsylvania railroad. By defendants’ testimony, the plaintiffs contracted absolutely to deliver by canal before navigation closed.</p> <p>(b) On November 12th, after the contract was made, the plaintiffs, in response to a request for information, wrote that they would commence shipping about December 1st, by lighter, and complete the delivery by Christmas. The first shipment, however, was not made until December 23d. Navigation then closed, and under instructions from the defendants the succeeding shipments were made by the Reading railroad.</p> <p>(c) In an action for the contract price of the pipe, the defendants sought to recoup expenses incurred by them in consequence of the later shipments being made by rail instead of by water, claiming thattheir direction to ship by the Reading railroad was not a waiver of their rights, being given after shipments by water had been made impossible by the plaintiffs’ delay :</p> <p>1. The letter of November 12th, not being a part of the contract, but merely an expression of plaintiffs’ expectations, evidence for the plaintiffs was properly admitted which tended to show that the reason why those expectations were not realized was that delays were caused by the discovery of defects in the specifications furnished by the city engineer, under which the plaintiffs were to work.</p> <p>(d) The court instructed the jury, inter alia, that if the contract of plaintiffs was to deliver by water and by water only, and the plaintiffs by their own fault, and not by reason of something that was beyond their control, failed to deliver in that way, and thereby the defendants were put to expense and suffered loss, that loss should be set