Shires ex rel. Shaylor v. O'Connor

Opinion by Beaver, J., Shaylor & Clark, the use plaintiffs in this case, sought to recover from the defendant a balance alleged to be due them under a contract under seal between Shires, the legal plaintiff, and O’Connor, under which the former agreed “to peel the balance of the timber standing on the lands of the Blossburg Coal Co. lying between Arnot & Corduroy Road leading to the Long Run Railroad ; ” “ to cut and to peel the hemlock timber standing or lying on above named land down to ten inches in diameter at the stump and up to six inches in diameter at the top,” “ to cure the bark properly and to load it on the cars of the Long Run Railroad in good order for transportation on or before the 1st day of October, 1893; ” “ to trim and cut into log lengths and to deliver on the banking ground at upper end of Long Run Railroad on or before the 1st day of April, 1894.” Provision is also made in the agreement for the manner in which the logs are to be cut and piled. The agreement provides further :' “ In consideration of the faithful performance of all the agreements, the party of the first part agrees to pay the party of the second part $3.50 per cord of twenty hundred pounds, purchasers’ measure, for the bark, and $3.50 per thousand feet for the logs; all logs to be scaled by the Company’s Scaler and by the Doyle rule; payment to be made by the party of the first part each month for the bark and logs delivered the calendar month preceding, except and reserving ten per centum until the completion of this contract, when full payment will be made.” The plaintiff below declared upon this contract, alleging that there was due him upon the entire work the sum of $701.36. The testimony in the case is voluminous. Numerous points were presented by the appellant and the appellee and the assign [472] ments of error number fourteen. They relate principally to the answers of the court below to the points of the plaintiff and defendant but resolve themselves into four questions : 1. As to the entirety of the contract. Was it an entire contract or was it severable ? 2. As to the rule of substantial compliance. 3. As to the measure of damages, and 4. As to the refusal of the court to grant exceptions in regard to the testimony of Ernest Watkins. The first, tenth and thirteenth assignments relate to the question of the entirety of the contract. The court properly held that the contract was entire. Quigley v. DeHaas, 82 Pa. 267, is an authority directly in point. The subject of the contract was the peeling of the bark from the timber upon the lands described in the agreement and the cutting into log lengths and removal of the timber so peeled. Although these items are separately described, they are, nevertheless, part of one entire job. It is true that the appellee agreed to pay a separate price for the peeling and delivery of the bark and the cutting and hauling of the logs, but these prices are to be paid “ in consideration of the faithful performance of all the agreements ” and as in Quigley v. DeHaas, supra, there is a reservation of “ten per centum until the completion of this contract, when full payment will be made.” It was said by Mr. Justice Gordon in the case above cited “ that this provision was designed to secure the proper completion of the whole work is not open to doubt and, if the plaintiff is permitted to recover full price for a partial performance, it is certain that this covenant is in effect abrogated.” The appellant had the full benefit of a very liberal holding and fair statement in various forms of the modern equitable doctrine of substantial compliance, leaving as was meet the question as to the fact of such compliance entirely to the jury. The second, third, sixth, seventh, eighth, ninth, eleventh and twelfth assignments of error may all be grouped under this one subject. The court below held in the general charge and in the answers to points that, if there had been substantial compliance with the contract, the plaintiff would be entitled to recover, even if a few trees were left uncut and a limited number of logs were undelivered. The rule laid down in Pallman v. Smith, [473] 135 Pa. 188, was substantially followed by the court below. In that case the court below said: “So in this log contract, if the plaintiff substantially fulfilled his contract by cutting the logs and delivering them substantially as he had agreed to, then he can recover, although there may be a few logs that were not delivered. If they were logs that were covered by the falling of the trees so that they could not be seen at the time of hauling the logs or logs that were covered deep in the snow so that they could not be hauled — even a small amount I mean — that would not be a substantial failure to comply; but, if there was a large amount of logs left on the land and the job was so carelessly and recklessly done that you could see it was only partially done, the plaintiff could not recover at all.” This language was approved by the Supreme Court and it is practically what was said to the jury in the present case. The entire question as to whether or not the job was substantially completed or was performed in such a faulty and negligent manner as was contrary to proper and prudent lumbering was fully and fairly submitted to the jury. In the former ease the court told the jury that there could be a recovery, subject to a deduction for the actual cost of finishing the job. In the latter case there could be no recovery. What more could the appellant ask, if the contract was entire, as it undoubtedly was ? In case of a recovery, that is, in case the jury found a substantial compliance with the contract, the measure of damages, as laid down by the court in answer to the plaintiff’s sixth and seventh points, as contained in the fourth and fifth assignments of error was substantially correct. It is the rule laid down in Sticker et al. v. Overpeck, 127 Pa. 446, and in Gallagher v. Sharpless, 134 Pa. 134. As to the fourteenth assignment of error, which relates to the testimony of Ernest Watkins, the court was clearly right in striking Out the answers of the witness to which objection was made. Instead of facts from which the jury could judge of the completeness of the plaintiff’s work, they contained comparisons with other lumber jobs in the neighborhood and the mere opinions of the witness. The refusal to grant an exception was not arbitrary but for the reason, as the court said that “We decline to give any more exceptions on this subject; we have already given exceptions that will cover it.” Bésides tins such a refu [474] sal is not assignable for error. An examination of tbe testimony shows that similar questions were asked other witnesses which, upon objection, were ruled out and as to which rulings the court granted exceptions but which are not assigned for error. The plaintiff, therefore, suffered nothing by the refusal to grant this particular exception. A careful review of the whole case shows no substantial error of which the appellant can justly complain. The judgment is therefore affirmed.