Shepherd & Sons v. First National Bank
Shepherd & Sons v. First National Bank
Opinion of the Court
Opinion by
This is an action of assumpsit brought to recover the difference between the cost of covering the main roof of the defendant's bank building with a slag and a copper roof.
At the request of the defendant’s architect, the plaintiffs tendered a bid or proposal for the erection of a bank building for the First National Bank of Wilkes-Barre, Pennsylvania. The proposal was in writing and contained several paragraphs, each making a different and conditional
Among the specifications was the following: “The roofs (excepting the front portion and main roof which is copper), shall be covered with a five-ply slag covering of the Warren-Ehret, or Owen D. Jones, manufacture.” The contract provided for three roofs on the building of different altitudes, the front roof, the main roof, and a third roof over the directors’ room. During the construction of the building a dispute arose between the contractor and the owner in regard to the covering for the main roof. The contractor claimed that the main roof was to be covered with slag; the owner, that it was to be covered with copper. It was agreed that the contractor should furnish a copper covering and that the dispute should be adjusted by an action of law. This suit was brought to recover the difference between the cost of the slag and copper covering of the main roof. The learned court below instructed the jury to find a verdict for the plaintiffs and the defendant has taken this appeal.
The defendant bank contends that the contract required the plaintiffs to erect the building according to the plans and specifications of the architect, and that the specifica
We do not agree with the defendant’s contention. The specification in question was ambiguous and was so regarded by bidders and architects, even by Mr. Kipp, defendant’s architect, who prepared the plans and specifications for the building. Mr. Shepherd, observing the ambiguity in the specification, attempted to communicate with the architect before he submitted the plaintiffs’ bid but was unable to do so by reason of Mr. Kipp’s illness. He then submitted to the architect through the latter’s wife certain questions as to the proper construction of the specification but received no definite answer, the architect replying “you better figure on copper roof.” This occurred on the morning the bids were to be submitted, and Shepherd testifies that he could not estimate the cost of a copper covering without a specification, and the time was too short for him to get a bid on a copper roof basis. Another bidder communicated with the architect on the subject in the same way. The first reply he received was that the main roof was to be of slag, but on his suggestion that the roof was too steep for slag, the architect replied again through his wife: “You better figure copper.” Another architect was called and he testified that there was nothing on the drawings to show the character of the roof, and that as there were three roofs he would interpret the specifications to cover the portion over the main bank room with slag.
The specification being ambiguous and open to different interpretations, it was proper for the plaintiffs in submitting a bid to specify the character of covering of the main roof on which they made their estimate. This relieved
The learned court below was right in directing a verdict for the plaintiffs, and the judgment entered thereon is affirmed.
Reference
- Full Case Name
- Shepherd & Sons v. First National Bank of Wilkes-Barre
- Cited By
- 1 case
- Status
- Published
- Syllabus
- Contract — Building contract — Ambiguity—Modification of specification — Acceptance of bid — Estoppel. Where the specifications of a building contract are ambiguous as to whether the roof shall be constructed of slag or of copper, and a contractor in submitting his bid in writing incorporates in his bid the words “Main roof estimate slag,” the owner must either reject these words, or if he fails to do so, and accepts the bid without objection, and the acceptance is incorporated into the contract, he cannot afterwards object to the right of the contractor to construct the roof of slag, and not of copper.