Cooper v. Hawley

[563] The opinion of the court was delivered by Collins, J. The contention, unsuccessful at the trial and in the Supreme Court, now pressed for our decision, is that, inasmuch as the contract between the parties was under seal it could not be altered by parol. Speaking for myself, I can see no reason why a valid contract, of whatever nature, should be denied efficacy because the parties had previously made a different contract, however solemn in form; but it is sufficient now to say that such a determination is in no way involved in an affirmance of the judgment under review. The cause was tried on the mistaken assumption of court and counsel of a correlation between the provisions of the seventh clause of. the contract and those of the third and fifth clauses of that instrument. They are so discrepant as to be clearly independent provisions. Alterations, deviations, additions or omissions requested by the owner are to be valued after the work is done. Alterations or extras ordered by the architect are conditioned on a previous agreement as to their cost. The language of the seventh clause is obscured by condensation, but, construed in the light of the other clauses, it plainly refers only to orders of the architect. An agency for an owner is readily inferred, in certain cases, to rest in a supervising architect. Seymour v. Long Dock Co., 5 C. E. Gr. 396; Henderson Bridge Co. v. McGrath, 134 U. S. 260. In this contract, by the seventh clause, such agency is expressed and circumscribed. The ruling, therefore, of the trial judge was all that the plaintiff in error could ask. The unnecessary statement in the charge that the contract requirement might be waived was harmless, even if incorrect. The only other complaint urged in this court is that alterations were proved for which the only authority shown was that of the architect, by parol. If this be so it must be assumed that, under the lucid instructions of the judge, the jury treated such alterations as unauthorized. It follows that they found them to be consistent with a substantial compliance with the contract. The amount of the verdict as applied to the evidence does not indicate any disregard of the [564] principles laid down to guide the jury. If the plaintiff in error conceived otherwise her remedy was by motion for a new trial, not by writ of error. If it could be shown, indeed, that in no case of deviation from the contract was there evidence of the owner’s concurrence, it is possible that it might be held error for the judge to have submitted the matter at all to the jury; but this is not claimed. Authority to change-the stairs was admitted to have been given, and there was evidence of authority to erect the building at a higher elevation than that called for by the plans. The grievance of the plaintiff in error is thus exhibited in the brief of her counsel “There was error in the judge’s charge in that it left it to-the jury to determine whether there was any evidence of a modification of the contract, when the case displayed absolutely none whatever, except in reference to the elevation of the house. The plaintiff below did offer proof that the defend-, ant was present and assented to such location, but there was-absolutely no proof of her assent to, or knowledge of any of the other changes, of which the case is replete with examples,, beyond the mere occupancy of the house by her, after discharging the contractor. * * * “The jury should have been charged that inasmuch as the-case showed no evidence whatever of acceptance, or waiver by the defendant, of any of the provisions, that the plaintiff could not recover thereon. It was a great hardship upon the-defendant to permit, under the guise of subsequently proving, the defendant’s assent to or ratification of the alterations and changes, evidence to be given of such changes, modifications- and alterations throughout the entire job, and then leave the case to the jury, although it was devoid of any proof whatever as to such ratification of deviation,, except in reference to-the variation, in the elevation of the .house.” It appeals, therefore, that the owner’s authority for at least one deviation besides that conceded was fairly open to discussion. The testimony shows that this was the most important, one. With the exception of the change in the stairs, passed by with the remark that authority for that was admitted, it. [565] was the only one to which the judge alluded in his charge to the jury. This court cannot be asked to scrutinize the voluminous testimony as to other deviations. We cannot know that claim of authority for any others was pressed before the jury. If so pressed without supporting proof, protection could have been afforded by appropriate requests to charge. I shall vote to affirm this judgment. For affirmance—The Chief Justice, Collins, Dixon, Ludlow, Adams, Hendrickson. 6. For reversal—Depue, Gummere, Bogert, Nixon. 4.