Hamilton v. Hart

Mr. Justice Gordon delivered the opinion of the court, That the verbal alteration of a scaled contract makes the entire agreement, including the writing, parol, is a doctrine now so well established as to preclude all doubt or hesitation. Vicary v. Moore, 2 Watts, 451, has been regarded as a leading case, and has been steadily followed, down to the ease of Carrier & Baum v. Dilworth, 9 P. F. S., 406. But it is equally true, as stated in McManus v. Cassidy, 16 Id., 260, that when the eause of action arises on a sealed instrument, the form must be debt or covenant, and the exception is only where the specialty has been so far altered by parol as to make substantially a new contract. The contract in baud, however, was never altered either in fact or intention. When we take up and examine the special averment in the narr., we find the alleged variance to consist of certain alterations made in the execution of the work, such as the taking down of the stack instead of throwing it down; sinking the foundations deeper than provided for in the specifications, and for additional timber and extra work furnished and done in and about the erection of the building. But for all this the contract itself, in express terms, provides: “The said Hart shall change the quantity or character of the work and materials called for by the said plans and specifications at any time the said architect shall so direct, and the price thereof shall be reasonable and proportionate so far as may be, whether it shall be added or subtracted from the consideration hereinbefore mentioned. Any change or alteration made by the said [632] William C. Hamilton & Son, or said architect, shall not invalidate the agreement, and the cost thereof shall be agreed upon and endorsed on this agreement, before said alterations are made. If the said Hart and the said Hamilton & Son are unable to agree as to such cost, whether as an addition- or deduction, said cost shall be determined by the architect, whose decision on all points affecting this agreement and the alterations thereof, shall be final and conclusive on both parties, and the said John D. Hart hereby expressly covenants and agrees that he will conform to and comply with and carry out all the decisions of the said architect, and the said Hart further agrees to give bond for the sum of ten thousand dollars with surety for the prompt performance of this contract, and will furnish a release of liens for all work done and materials furnished.” Here is the most ample provision made for every alteration that may be required, either in the work or material, done or furnished, in and about the construction of the premises, and also the manner in which the cost thereof shall be settled. Admitting, then, all the allegations made in the plaintiff’s narr., and in his bill of particulars, yet do they not alter or. vary the specialty in the slightest degree; its provisions include them all, and they could only be enforced by the action of covenant. The case of Shaeffer v. Geisenberg, 11 Wr., 500, is in point, and rules the controversy against the plaintiff. It was there held, that while a contract under seal, for a special purpose, exists, the rights of the parties thereto are fixed by it, and, unless it be abandoned, the remedy of either party for a breach thereof, is covenant and not case. There, as here, the contract provided the manner in which alterations and extra work should be made, and the price settled; it was, therefore, adjudged that for the cost of such extra work the remedy was on the agreement, and that the action of assumpsit could not be maintained. The judgment is reversed.