J. L. Robinson Construction Co. v. Barry

Adkins, J., delivered the opinion of the Court. On December' 1st, 1916, the appellee contracted in writing-with the appellant to install in the apartment house of the-appellant at 1130 West Lafayette avenue certain plumbing and heating-; apparatus included in which was 1,700 feet of’ radiation. It was provided in the contract that all the plumbing material should be “installed complete with necessary ²⁷⁷ waste and. supply pipes and to agree to the rules, and regulations of the Health Department.” Defendant claims that these regulations require certain valves and stop cocks omitted, by plaintiff. The default complained of by the defendant is tho omission of these cut-off valves, or stop cocks, and of from 76 to 154 feet of radiation.

Suit was brought by appellee against appellant on June'! 1st, 1918, on the common counts in assumpsit, in which! appellee claimed the balance of price agreed upon in the: written contract, less credit for shortage in radiation and cer- ' tain other allowances, and. an additional amount for extras, the account showing a balance of $477.13. General issue pleas were filed by defendant. The jury gave a verdict in favor of appellee for $414.91 on which judgment was entered. The two exceptions relied on by appellant are the rulings of the lower Court: 1. .Permitting the appellee to testify that certain cut-off valves which appellant claimed were required to be installed under the Rules of the Health Department were not included in the contract. • 2.

In granting appellee’s prayer and refusing appellant’s first prayer. The ground of the first exception is that whether, or not these cut-off: valves were included in the contract was not- a question which could properly be answered by the witness, as there was a written contract which should have been permitted to speak for itself. We think the objection to this question should have boon sustained, but we do not regard the failure to sustain it a reversible error in as much as the Health Laws referred to- in the contract were in evidence and the jury had the opportunity to determine for itself whether the contract and the Health Laws required the installation of such valves. Besides the witness testified without objection that the plumbing was done in accordance with the rules and regulations- of the Health Department, and stated on cross-examination that he did not install the valves ²⁷⁸ referred to, which was the same in effect as the answer he .gave to the question objected to: Appellant’s first prayer was as follows: “The defendant prays the Court to instruct the jury that there is no evidence legally sufficient from which they can find that the plaintiff has performed his contract, and therefore their verdict must be for the defendant.” It was sought by this prayer to withdraw the case from the jury on the ground that, there being a special contract, appellee could not recover on the common counts, having failed to complete the work in accordance with the contract, and there being no evidence that performance of the contract by the appellee was prevented or waived by the appellant, or that appellant accepted the work as done.

Appellee’s prayer was as follows: “The jury are instructed that if they find for the plaintiff, he is entitled to recover the balance which they may find to be unpaid on the contract price, and the amount of the extra work installed by him, if .any they find, less a reasonable deduction for such part of the work as they find was not installed by him, according’ to contract, and for which credit has not been allowed, with interest in their discretion, on the total sum found by them to be due, from May 31st, 1917, to date.” We find no error in the rulings of the lower Court on the prayers. The vice of defendant’s first prayer is that it is based on the assumption that there is no evidence of acceptance by the defendant of the work done by the