Cowsill v. Vipond Construction Co.
Cowsill v. Vipond Construction Co.
Opinion of the Court
We have not been convinced that any reversible error was committed on the trial of this case, and the judgment for the defendant properly followed the facts found, especially the ninth, which is that “the plaintiff could have furnished the necessary materials and completed the work contemplated and covered in the written agreement had he prosecuted the work without negligence and in good faith, and with ordinary diligence, for at least, the sum due the defendant.”
In waiving a jury trial the parties agreed to submit the case to Hon. Martin Bell, the then president judge of the court below, in accordance with the provisions of the Act of April 22, 1874, P. L. 109. Upon his death the plaintiff might have insisted that the agreement to so submit had terminated and refused to proceed before his successor. He, however, went on before the new president judge, without objection, and now that judgment has been cast against him, it is too late to insist that the agreement to waive a jury trial fell with the death of Judge Bell.
Judgment affirmed.
Reference
- Full Case Name
- Cowsill v. The Vipond Construction Company
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- Contracts — Building contracts — Default—Damages—Judgment for defendant. 1. Where in an action against a subcontractor for failing to complete certain stone work, it appeared that when defendant abandoned work a balance was due him for work already performed, and where there was evidence that plaintiff eould have completed the work for at least the amount due defendant, had he prosecuted the same without negligence and in good faith, the trial judge, who tried the case without a jury, did not commit error in entering judgment for the defendant. Practice, O. P. — Trials without a jury — Death of trial judge —Proceedings before successor. 2. Where a case has been submitted to a judge without a jury under the Act of April 22, 1874, P. L. 109, and before the case .was decided the trial judge dies and the parties proceed before his successor without objection, it is too late after judgment, to insist that the agreement to waive a jury trial fell with the death of the judge before whom the case was commenced.