Opinion
April 14, 1965.
May 10, 1965.
Contracts — Construction — Agency — Affirmation by plaintiff of part of contract and denial of other part — Building contract — Provision against delay due to labor problems — Election of owner to treat contract as breached and to take over construction.
In an action of assumpsit based on a written contract, in which it appeared that the contract was in the form of an offer made by plaintiff to defendant and accepted by defendant; that part of the contract, to which plaintiff objected and which plaintiff stated his agent was not authorized to make, provided that there would be no delay in erection due to labor problems, and that the building was to be completely erected within a four-week period; that after plaintiff commenced construction there was a work stoppage; that defendant informed plaintiff that unless construction was resumed defendant would consider the contract breached and take over the construction, that plaintiff did nothing, and defendant constructed the building; that the labor dispute continued and plaintiff could not have resumed construction at any time during the four-week period; and that the court below, holding that plaintiff could not affirm part of the contract and deny part, and on the pleadings and facts was bound by the entire contract, and that after the demand to resume work was ignored defendant had the right to treat the contract as breached and to take over the construction of the building, granted a compulsory nonsuit; it was Held that the order of the court below should be affirmed.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, and HOFFMAN, JJ. (FLOOD, J., absent).
Appeal, No. 76, April T., 1965, from order of Court of Common Pleas of Butler County, March T., 1963, No. 148, in case of W.R. Konkle v. Kennihan Development Company, Inc. Order affirmed.
Same case in court below: 36 Pa. D. C. 2d 143.
Assumpsit. Before KIESTER, J.
Compulsory nonsuit entered; motion to take off nonsuit refused. Plaintiff appealed.
Robert F. Hawk, with him Painter Painter, for appellant.
Harry K. McNamee, with him Marshall, Marshall, McNamee MacFarlane, for appellee.
Argued April 14, 1965.
The order of the Court of Common Pleas of Butler County is affirmed on the opinion of Judge GEORGE P. KIESTER for the court below, reported at 36 Pa. D. C. 2d 143.