Phillips v. American Cement Tile Manufacturing Co.

Opinion by Mr. Justice Brown, On May 16, 1905, the appellee, as a subcontractor, entered into a written contract with the appellant to do certain roofing for it, for which it was to furnish the material. The clauses in the contract which are material in passing upon the assignments of error are the following : “ The sub-contractor is to receive $2.00 per square for all exposed roofing, siding and gutters which he erects. . . . Should there be any deviation from the specifications as contracted for between the Pitts-burg Plate Glass Company and the American Cement Tile Manufacturing Company, then the sub-contractor shall receive all benefits therefrom. . . . Poorly fitting, badly warped or broken title shall be considered imperfect and shall not be placed on roof.” The appellee commenced work under his contract on June 17, 1905, and continued to work under it until about October 5, following, when, according to his testimony, the clause providing for his compensation was abandoned and the appellant made a new parol agreement with him that thereafter he should charge a per diem compensation for himself and each man that worked on the building. Appellant’s main contention is that the court ought not to have submitted to the jury the question of the change of the terms of appellee’s compensation, because the only evidence of it was his unsupported testimony. Ho witness was called to corroborate him, and he was contradicted by the two called by the appellant, with one of whom — its vice-president — he testified that the new agreement as to compensation had been made. If the question was simply one of the substitution of a new parol agreement for a per diem compensation for the work called for in the written contract, the contention of the appellant as to the insufficiency of the evidence to show that the clause as to compensation had been changed would have to be sustained. A [146] presumption which, is almost conclusive is, that when work is commenced under a written contract providing for its. compensation, it is prosecuted to the end for such compensation, and this presumption is not to be overcome by less proof than is required to vary, modify or contradict a written agreement on the ground of the omission from it, by fraud, accident or mistake, of a contemporaneous parol agreement. By written contracts alone can disputes between contracting parties, as a rule, be avoided and the rights of each protected ; but no reliance can be placed upon them, if, for work commenced, prosecuted and finished under them, different compensation than that provided for in them for such work may be claimed and recovered upon the unsupported testimony of the contracting workman, that during the continuance of the work the employer had made a parol agreement with him for such different compensation. When the compensation clause in a written contract is to be wiped out altogether and a new parol agreement substituted for it, the rule as to the measure of proof required to vary, modify or contradict a written agreement is to be applied with unabated rigor. This appellee is not claiming different compensation from that fixed in the agreement for the work which it called for, but for different work. He is not attempting to alter the written agreement as to his compensation, but to show that a new agreement was made to compensate him for work different from that which he was to do under it. In it there is an express provision that “ poorly fitting, badly warped or broken tile shall be considered imperfect and shall not be placed on roof.” The tile was furnished by the appellant, and the testimony of the appellee is that about October 5, he discovered that what had been sent to him did not fit; that he so notified the secretary and treasurer of the company; that the vice president came and saw the condition of affairs and asked him what he would suggest; that he replied that the best thing to do was to substitute galvanized iron; that the vice president said the materials they had furnished had cost too much money to be abandoned, and asked if there was any possible way to use them; that he replied that the only way to use them was to cut them with a hammer and chisel, but that it would take a long time to do so, and that he would have to [147] charge a day’s work if he would have to cut them, instead of $2.00 per square; that he said he could not place the plates and gutters according to the written contract, and that thereupon he was told to go on and finish the work at a per diem compensation. Freund, the vice president, admits that, if the plates had to be cut, such work was not contemplated by the written contract; and he further admits that the appellee, on one occasion, showed him a piece which had to be cut and that he told him to cut it. The testimony of the appellee, that he was compelled to cut the tiles to make them fit, is uncontradicted. He admittedly did different work from that called for in the contract, and for doing it he was entitled to different compensation from that fixed in the contract, even if it had not provided that for any deviation from the plans and specifications he should receive all benefits therefrom. His testimony was, therefore, simply as to what had been agreed upon between him and the appellant as to proper compensation for work which he admittedly did and which admittedly was not within the terms of the written agreement. This being the situation, the court properly submitted the question of the agreement of the appellant to pay the appellee a per diem compensation as one of fact to be determined by the jury from what they regarded as the preponderance of the testimony. “It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed or a new one substituted. And this may be shown by parol, by showing either an express agreement, or actions necessarily involving the alteration: ” Holloway v. Frick, 149 Pa. 178. The 5th, 6th and 7th assignments are overruled. In the first four assignments, complaining of the court’s ruling on offers of evidence, we can discover no error, and they, too, are dismissed. Judgment affirmed.