Lilly v. Person & Riegel

Opinion by Mr. Justice Fell, Our labor in reviewing the proceedings of a protracted trial involving many complicated questions of law and fact has been materially lessened by the clear and orderly manner in which the case has been presented by counsel. The plaintiff contracted in writing with the defendants to construct a building for them for $17,550. One of the specifications provided that he should tear down an old' building and use such materials in the construction of the new one as were suitable, “ the net value of such materials to be reckoned at the amount stated in the contractor’s bid, and the said amount to be deducted from the gross contract price.” The plaintiff’s bid for the new work and for the material of the old building was in writing, but had been lost or destroyed by the defendants, and there was no written evidence of the amount he had agreed to allow for the old material. The dispute upon this branch of the case was whether the agreed allowance for this material had been deducted from the amount of his bid in ascertaining the contract price or whether it should be deducted from the amount named in the agreement. The plaintiff was allowed to testify under objection that his bid was $17,880, and that he wrote below his bid that he allowed $300 for the old building; that he was then told by the defendants that if he would throw off $30.00 they would give him the contract; that he assented to this, and that the contract was afterwards written and the price named in it, $17,550, arrived at in that way. The issue of fact raised by this testimony and its denial by the defendants’ witness was submitted to the jury to determine what the the actual agreement as to price was. We find no error in either the manner in which the issue was raised or the manner in which it was submitted. [231] The action was to recover on the basis of the price named in the contract. The only written evidence fixed that at $17,550. The plaintiff might have rested upon this agreement. As the bid for the work to be done and the old materials to be purchased had been lost the contract was the only written evidence in the case, and if any deduction was to be made parol evidence must of necessity be resorted to. If the defendants had done this either upon the ground that the contract offered was not the whole of the written agreement or that by mistake the amount of the bid for the old materials had not been deducted from the contract price it would have been competent for the plaintiff to have met the claim by oral evidence in rebuttal. As there was nothing in the agreement to bind him to take less than $17,550 his recovery on that basis could be defeated only by proof of matter outside the agreement. It was competent for him to anticipate such a defense and to explain any matter which suggested a doubt as to his claim. The second ground of defense relates to the claim made by the plaintiff for additional compensation for constructing a building ten inches wider than the plans and specifications provided for. The agreement was signed at the middle of the last page, and witnessed by two witnesses. The attesting clause reads “Alterations on pages 1 and 2 were made before signing. Also additions on page 6.” On the page following with nothing intervening to call attention to it is written, “ The plans and elevations which form part of this agreement are ten inches less than the width of the building is intended to be. In all cases the details will be followed in preference to and i" scale drawing.” The half of the page below the signatures was blank, and there was ample room to have written this addition there. The testimony was conflicting as to whether the addition had been made before the agreement was signed, and whether the plaintiff's attention had been 'called to it. The subscribing witnesses testified that it had been made before signing, and that it was read to the plaintiff, and they were corroborated by one of the defendants. The plaintiff denied all knowledge of it and of any intention on the part of the defendants to construct a wider building, until he had commenced work and was consulted by them as to the additional cost and agreed to the change, the cost being left for adjustment when the work [232] was completed. He was sustained by the corroborating proof that the purchase of the additional strip of ten inches of ground was not made until seven days after the agreement was signed, and that then the architect’s attention was first called to the matter and the plans altered. We are concerned with this conflicting testimony only as it gives rise to and affects the legal question involved. The jury was instructed that if the plaintiff did not know of the addition to the contract at the time of signing and was deceived because of the place in which it was written, he was not bound by it. The contract remained in the possession of the defendants from the date of its execution until it was produced at the trial, and during that time was not seen by the plaintiff. Any alteration of a written instrument detracts from its credit. If the alteration is material and in the interest of the person producing the writing it gives rise to a suspicion which it is incumbent upon him to remove. An alteration may ordinarily be sufficiently explained by the fact that it is noted in the attestation as having been made before the execution, as this virtually incorporates it in the text. “ But if any ground of suspicion is apparent on the face of the instrument the law presumes nothing, but leaves the question of time when it was dune, as well as that of the person by whom and the intention with which the alteration was made, as matters of fact to be ultimately found by the jury upon proof to be adduced by the party offering the instrument in evidence: ” Greenleaf on Evidence, vol. 1, *564; Jordan v. Stewart, 23 Pa. 244. The addition in this case was after the signatures. It was not written on the same page with them, although there was ample room, half of the page being blank. It was written at the top of the following page, where it would not ordinarily be observed. The plaintiff is presumed to have read all that preceded his signature, but there is no presumption that he read what followed it on another sheet. The testimony on this branch of the case raised an issue which was properly submitted to the jury. The contract provided that the builder should forfeit $10.00 for each day that the building remained unfinished after the time fixed by the agreement for its completion. It also provided that any change in the plans “either in quantity or quality of [233] the work ” should be executed by the plaintiff “ without holding the contract as violated or void in any other respect.” During the progress of the work a change was made in the material for the front of the building from brick and granite to Indiana stone with carved panels and frieze. The difficulty in procuring a prompt delivery of the stone caused a delay in finishing the building, and the defendants claimed to recoup the stipulated forfeit and set off the loss of rents. By the agreement the defendants reserved the right at any time during the progress of the work to make any alterations in the plans and specifications, and it became the duty of the plaintiff to carry them into effect. The provision that the changed plans should be executed without holding the contract as violated or void in any other respect should be read in connection with this reserved right. The words “in any other respect” exclude the implication of any change in terms except such as would result from the alteration of the plans, but not such changes as would be the necessary consequence thereof. Alterations calling for more work and materials, or work and materials of a different class, might of necessity require more time for the completion of the building. They might be directed so' near the end of the work as to make it impossible to complete the building within the time stipulated. In this case the building was in Bethlehem, and the material fixed for the front by the contract could be purchased in an open market and delivered ready for use in one day. The stone required by the alteration could be procured only at the quarries in Indiana, where an order had to await its turn, and after delivery it required weeks of skilled labor to fit it for use in the building. For such delay in the completion of the building as was the necessary consequence of the change of plans by the defendants the plaintiff was not answerable, and for it no forfeiture could be exacted. The judgment is affirmed.