Hartley-Zeigler Co. v. Bacon

Opinion by Mr. Justice Potter, In the first assignment of error counsel for appellant complain of the refusal of the trial court to withdraw a juror and continue the case, when it appeared that a copy of certain plans was not asked for by the plaintiff, nor were they appended to the declaration filed by plaintiff. The determination of this question was within the discretion of the court below, and we see no evidence of any abuse of that discretion. The plaintiff was to furnish certain concrete work at a stipulated price per cubic perch. It did not contract to build a garage, or to be responsible for the building. The plans were to be used to indicate where the work was to be done, but the specifications do not seem to have been mentioned as forming part of the contract. The plaintiff’s only obligation under the agreement was to furnish the concrete material for the building according to the directions of defendant and to put a “1 to 6” mixture in the walls. There was plenty of evidence that this part of the contract was fulfilled. Under the circumstances the refusal of the court below to withdraw a [93] juror and continue the case cannot be regarded as an abuse of discretion. The first assignment of error is, therefore, dismissed. In the second, third and fourth assignments of error complaint is made that the trial judge refused to admit in evidence the plans and specifications of the garage building, for the purpose of showing that the contract had not been carried out in accordance with defendant’s construction thereof. An examination of the second contract, which was that of August twenty-third, shows that the specifications were not mentioned therein as part of the undertaking by plaintiff. Aside from this, we do not see that the refusal to admit them in evidence resulted in harm to the defendant, for the reason that he was perhaps improperly permitted to testify to their contents, and that the contract was to be performed in accordance therewith. Of this the appellant cannot complain. These assignments are, therefore, dismissed. Nor is there any merit in the suggestion in the fifth assignment, that the trial court erred in rejecting defendant’s offer to prove the meaning of the word “plans” as used in this connection. The distinction between the use of plans, and of specifications, was pointed out in Knelly v. Howarth, 208 Pa. 487. It was there suggested that plans are not, in the same sense, nor to the same extent, to be considered an integral part of the contract as are the specifications. Their office is rather to illustrate and explain what is to be done. In the present case the offer to show that the word “plans” included the specifications, was without any sufficient basis, and was not justified, and it was properly excluded. In the sixth assignment, it is alleged that the court below erred in striking out testimony on behalf of defendant, which asserted that the specifications defined what constituted the character of the mixture of concrete agreed upon by the parties. As the specifications were not part of the contract, it was immaterial what definition as to the mixture they contained. Further [94] more, evidence was admitted by the court below to show that the concrete was not furnished in the precise proportions which had been agreed upon, so that the exclusion of the evidence in question did no harm to the defendant. Without taking up in detail the remaining assignments of error, it is sufficient to say that in none of them do we find any substantial merit. We are satisfied that the court below properly submitted to the jury the question whether the defendant wilfully and without a valid excuse declined to make payment in accordance with the contract. He properly instructed the jury that if the defendant was without a valid excuse for refusing payment, his conduct constituted a breach of the contract, and plaintiff was justified in bringing its action to recover for the work done, and the materials furnished, in accordance with the prices named in the contract. The suggestion of counsel for appellant, that the-court did not sufficiently emphasize defendant’s alleged right of set-off, is without force. If defendant had a valid excuse for refusing the demand of the plaintiff for payment, he had a right of set-off. If he had no such legal or valid excuse for refusing payment, he would have no foundation for a claim of set-off. There was no occasion for the court in its charge to give separate consideration to the question -of the alleged right of set-off. Counsel for the defendant did not seem to think it necessary at the time, for at the close of the charge, when the trial judge asked whether counsel desired him to go any further into the evidence, the record does not show that any such request was made. The trial judge was clearly right in refusing to give binding instructions in favor of defendant. It appeared from the evidence that plaintiff rescinded the contract, and its action was justified, if, as found by the jury, the defendant refused to pay the amount due to plaintiff in accordance with the terms of the first agreement. Counsel for appellee admit that a slight error was [95] made in computing the amount for which judgment was entered. This error they offered to correct. With that understanding, the assignments of error are all overruled, and the judgment is affirmed.