Hack v. Shovlin

U.S. Court of Appeals for the Third Circuit May 14, 1917

Hack v. Shovlin, 258 Pa. 188 (3d Cir. 1917)

101 A. 956; 1917 Pa. LEXIS 816

Brown, Frazer, Mestrezat, Potter, Walling

Opinion of the Court

Per Curiam,

The learned trial judge instructed the jury to find as a fact whether, the written notice of the appellee to the appellant of January 5, 1914, was an absolute abandonment of the contract by the former, or merely that he would not prosecute the work until, upon a re-estimate for December, he was paid what was due Mm. The finding of the jury was that he had not absolutely abandoned the contract, and, as the appellee did not tender payment to him of the amount due on the re-estimate of January 7th, he was entitled to recover. This was the correct view of the court below in discharging the rule for a new trial, and the judgment is affirmed.

Reference

Status: Pa.
Syllabus: Contracts—Building contracts—Construction ■—■ Abandonment— Evidence—Case for jury. In an action for work and labor done and materials furnished under a building contract the defense was that plaintifE had forfeited his right to recover by refusing to proceed with the contract in accordance with its terms. The contract provided that on the first day of every month estimates should be made by the architect of the work done on the building and on the same day the amount of said estimate, less ten per cent., should be paid the contractor. ,Au estimate was made with which plaintifE was not satisfied, and he thereafter notified defendant that he would not prosecute the work until upon a re-estimate he was paid what was due him. After the re-estimate was made defendant did not pay what was due plaintifE thereunder, but finished the work at his own expense. Held, the court properly submitted to the jury the question whether plaintiff had abandoned the contract by refusing to proceed until he was paid, and a verdict for plaintifE was sustained.