Eichelberger v. Miller

Bartol, J., delivered the opinion of this Court: The decision of this appeal depends entirely upon the true construction of the contract between the parties, which is in these words: “I, the undersigned, do hereby agree to do all the carpenter’s work of the new dwelling house about to be erected on the north-west corner of Cathedral and Monument street, for D. H. Miller, in accordance with the plans and directions furnished by Niernsee and Neil-son, architects, and will do the said work in a complete and workmanlike manner at the rate of fifty peer cent, deduction from usual book of measurement prices. “All work to be paid for as it progresses, by Niernsee and Neilson’s order to me on the said D. H. Miller. And I further agree to give due attention to the selection of all the lumber materials for the said buildings, and in case of any mismanagement on my part, it shall be at my expense.” — (Signed,)—“Emanuel W. Eichelberger.” ³³⁴ Under this contract lumber was furnished by the appellee, and sent to the shop of the appellant for his convenience, where the latter had gone on to do work thereon, as a carpenter, preparatory to putting the same in the building of the appellee. While the carpenter’s work was in the shop of the appellant, some of it finished and ready to be put into the building, it was destroyed by fire. The appellant afterwards went on to supply other articles in the place of those destroyed, out of lumber supplied by the appellee, and completed the building, for which he was paid.

But this action was instituted for the purpose of compelling the appellee to pay the appellant for the value of his work done upon the articles destroyed by fire. In the course of the trial below, the appellant asked the Court to instruct the jury, that upon these facts, he was entitled to recover under the contract- “for the work so destroyed, such an amount as the jury should find from the evidence in the case, the said work to have been worth.” In the opinion of this.Court there was no error in refusing to give this instruction to the jury.