Summary
In Frederick Snare Corp. v. Philadelphia, 325 Pa. 460, in a per curiam opinion, the Court refused to allow damages caused by delay in delivering the site for the construction of a retaining wall where both parties knew of the difficulties and delays which might occur and neglected to insert such a requirement in the contract.
Summary of this case from Acchione v. CommonwealthOpinion
January 20, 1937.
March 22, 1937.
Municipal corporations — Contracts — Performance — Time — Delay by city — Special provisions of contract — Negligence.
1. Where a contract between a contractor and a city for the construction of a retaining wall along the bank of a river expressly provided that the work of construction would commence and proceed from a certain point, and that the portion of the work coming within the area occupied by the city as a loading wharf for ashes would be deferred until such time as the city would vacate the wharf and equipment, and further provided that the plaintiff should complete the work within a specified number of days, with a penalty for delay in completion, but placed no limit of time within which the city was required to surrender possession of the wharf to the contractor, such contract did not impliedly impose upon the city the obligation to have the site of the wharf available to the plaintiff by the time work on the wall had reached that point. [460-64]
2. Under the circumstances, the city was not liable to the contractor for damages resulting from delay of the city, without negligence, in vacating the loading wharf. [460-64]
Before SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 301, Jan. T., 1936, from judgment of C. P. No. 2, Phila. Co., March T., 1934, No. 6970, in case of Frederick Snare Corporation v. City of Philadelphia. Judgment affirmed.
Assumpsit for breach of contract. Before LEWIS, J., without a jury.
Findings by trial judge and conclusions of law in favor of plaintiff. Exceptions by defendants sustained and judgment entered for defendant on the whole record in an opinion by GORDON, P. J., as follows:
We granted the defendant's motion for judgment non obstante veredicto in this case because we were of opinion that the defendant, the City of Philadelphia, committed no breach of contract which would entitle the plaintiff to damages. The plaintiff company, which is engaged in the business, inter alia, of constructing retaining walls along banks of rivers, entered into a contract with the City to construct such a wall for a considerable distance along the west bank of the Schuylkill River southward from the Spring Garden Street bridge. The City had been using the river bank at this point as an ash dump, or site for the collection and removal of ashes, access to which by water was had over a wharf located near the bridge at the northern end of the stretch in question. It, therefore, became necessary for the City to procure a new site for its ash removal operations before the plaintiff could proceed with the construction of that part of the wall where the wharf was located. Knowing this, and appreciating the uncertainty of the City's being able to deliver possession of the wharf at any fixed time, the parties inserted a special provision in the contract to the effect that the plaintiff should begin work at the southern end of the wall, and should defer work at the site of the wharf until the City should vacate the wharf and deliver possession of it to the plaintiff. The exact language of the contract in this particular is as follows: "It is understood and agreed that the work of construction will commence at the southern limit and proceed northward. That portion of the work coming within the area occupied by the City as a loading wharf for ashes will be deferred until such times as the City will vacate the loading wharf and equipment." The contract also contained the usual provision that the plaintiff should complete the work within a specified number of days, with a penalty for delay in completion, but placed no limit of time within which the City was required to vacate and surrender possession of the wharf to the contractor.
The plaintiff began work at the southern end of the wall, as the contract required, and the City immediately set about securing a new location for the dump. There was a delay of eight months, however, in relocating the dump, due to successful litigation by taxpayers objecting to its location at the site first selected. This delay resulted in holding up the plaintiff's prosecution of the work and keeping valuable machinery idle for the period mentioned, thus increasing the cost of the work to the plaintiff by the amount of the damages on this account found and awarded by the trial judge. It is not contended by the plaintiff that the delay was due to negligence on the part of the City in procuring a new site for the dump. Indeed, the plaintiff concedes that its suit is not based upon any claim of negligence. Its sole contention is that the City impliedly contracted to have the site of the wharf available to the plaintiff by the time work on the wall had reached that point, and breached the contract by failing to carry out this undertaking. The learned trial judge interpreted the contract as impliedly imposing such an obligation upon the City, and, accordingly, held it liable in damages to the plaintiff.
With this interpretation of the contract a majority of the court are unable to agree. Nothing in its language justifies such a conclusion. The parties knew the difficulties and delays that faced the City in relocating a governmental activity of this character, and specially provided for such delays by agreeing that the plaintiff would "defer" work at the site of the wharf until the City should release possession of it to the plaintiff. The omission from the contract of any undertaking by the City to release the wharf within a specified time clearly indicates the intention of the parties not to bind the City to a fixed time. Again it will be noted that all the obligations created by the clause in question are imposed upon the plaintiff, and none upon the City; it is the plaintiff who undertakes to begin at the southern end of the wall, and to "defer" work "until such time as the City will vacate the wharf." Had it been in the minds of the parties that the City was to vacate and deliver it to the plaintiff by a particular date, or by the time the plaintiff should reach it in the progress of the work, they would have written such an important requirement in the contract. Their omission to do so, therefore, coupled with the language actually employed, placing upon the plaintiff the duty to wait "until such time as the City will vacate the wharf," forces the conclusion that the parties did not intend to bind the City to a time limit in this respect. To read such an agreement into the contract would materially alter the written instrument by imposing upon the City an additional duty which it never assumed.
The case of Sheehan v. Pittsburgh, 213 Pa. 133, upon which the plaintiff relied to support its contention of breach of contract by the City, and which the learned trial judge followed, is not, in our judgment, in point. In that case the contractor agreed to construct a street for the City of Pittsburgh, and, after the work was commenced, it was discovered that the City had not acquired title to a part of the right of way on which the street was to be constructed. Both parties to the contract appear to have been ignorant of the City's want of title, and made their agreement upon the assumption that it was in a position to give the contractor immediate possession of the entire site of the work. In subjecting the City of Pittsburgh to damages for breach of contract, the Supreme Court held in substance that, where one enters into a contract with another to do work on a certain piece of land not owned, but mistakenly thought by both to be owned, by the other, there is an implied undertaking on the part of him who represents himself as the owner that he is, or will become such, so that the other party to the contract can perform his part and reap the benefits of his bargain. The Sheehan case has no application, however, to a situation such as the present, where all the circumstances are known to both parties, and they make a special agreement with respect thereto. In these circumstances, the plaintiff's agreement to suspend operations until the City should turn over the wharf to it carried with it an implied renunciation of its right to demand immediate possession of the wharf, under the line of cases referred to.
As we have indicated above, the plaintiff repudiates any contention that the City breached its contract by negligent delay in procuring the removal of the dump. It rests its claim solely on the supposed contractual duty of the City to vacate the wharf when the work of building the wall reached its site. The contract imposed no such duty on the City, and its failure to do so was not, therefore, a breach of any undertaking by it. The risks, in this respect, of delay in the prosecution of the work were assumed by the plaintiff under the contract itself, and it cannot now shift that burden to the defendant.
It was for the foregoing reasons that we entered judgment non obstante veredicto in favor of the defendant.
Plaintiff appealed.
Error assigned, among others, was action of lower court in sustaining defendant's exceptions.
Frederic L. Ballard, of Ballard, Spahr, Andrews Ingersoll, with him Robert Brigham, for appellant.
A. Evans Kephart, with him Ernest Lowengrund, Assistant City Solicitors, and Joseph Sharfsin, City Solicitor, for appellee.
Argued January 20, 1937.
The judgment is affirmed on the opinion of Judge GORDON.