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June 19, 1950


The opinion of the court was delivered by: MCVICAR

This action is before us on defendants' motion to set aside verdict and judgment and in the alternative, motion for new trial.

On November 25, 1942, the defendant, Caristo Construction Corporation, entered into a contract with the United States of America whereby Caristo, as contractor, agreed to construct a War Housing Project in Moon Township, Pennsylvania. Subsequently, Caristo and the plaintiff, E. H. Dobson, entered into a written sub-contract in connection with the project. The sub-contract included off-site water lines and sewers, water storage tank, pumping station and a sewage disposal plant.

 The price agreed upon between Dobson and Caristo was $ 63,000.00 'subject to additions and deductions for changes as may be agreed upon'. Dobson, in his contract with Caristo, agreed to be bound to the contractor by the terms of the General Conditions and Contract Documents entered into by and between the General Contractor and the Allegheny County Housing Authority, representative of the Federal Public Housing Authority.' *fn1" One of the terms of the prime contract between the Government and Caristo provided for a system of 'equitable adjustment' of disputes in regard to changes in the contract. *fn2"

 After the contract between Dobson and Caristo had been executed but before any work had been commenced upon the off-site sewer and sewage disposal plant, the Government ordered a change in its location. Before work had commenced on this second location, a third location for the off-site sewer and sewage disposal plant was decided upon by the Government. Accordingly, plans were sent to the plaintiff and work was commenced upon this phase of the construction contract. However, before its completion, the sewage disposal plant was cancelled by the Government and work was stopped. Plaintiff claims that a modification of price in the amount of $ 6,189.00 resulted from this change of location. *fn3" A credit was due the Government, i.e. a reduction in the original contract price; by reason of the work not done and materials not furnished in connection with this disposal plant; the plaintiff asserting a credit of $ 4,510.17 and the defendant, $ 8,000.00. Plaintiff also claims $ 1,091.21 as a result of an extension of this sewer line to the Ohio River and restoration of the sewage disposal plant site.

 In addition to the above items, plaintiff has claimed various amounts of compensation for certain extras in connection with the contract and for repairing a road used by the defendant.

 The defendant admits an amount of $ 5,094.09 to be due the plaintiff, but has denied liability as to the balance of the plaintiff's claim of $ 14,702.41. The case was submitted to the jury, who returned a general verdict for the plaintiff in the amount of $ 14,094.91, and judgment was duly entered. Defendant has moved to set aside the verdict and judgment, and to enter judgment in the amount of $ 5,094.09, or, in the alternative, seeks a new trial.

 In view of the number and variety of the plaintiff's claims, the case can be discussed more satisfactorily by treating each item of plaintiff's claim separately.

 Sewage Disposal Plant and Off-Site Sewer.

 Plaintiff claims that the contract of November 25, 1942 with Caristo was subsequently changed by an express modification entered into by Dobson and the defendant's agent as a result of the relocation of the sewage disposal plant. Plaintiff asserts in his complaint that the amount of this adjustment was $ 6,189.00.

 Here, however, the plaintiff has asserted an express modification of a contract. in other words, a new contract was entered into, complete in all its elements. The price of this new contract as asserted by the plaintiff is $ 6,189.00; yet viewing all of the record most favorably to the plaintiff there is no evidence of any agreement as to price. At best, plaintiff's evidence points only to the costs, which he sustained, or the value of the changes ordered. Price is an indispensable element of an express contract and without an acceptance on the part of the defendant, no contract can result. See Witten v. Stout, 284 Pa. 410, 131 A. 360; Cramer v. McKinney, 355 Pa. 202, 49 A.2d 374; Bemis v. VanPelt, 139 Pa.Super. 282, 11 A.2d 499. Unless plaintiff's cause is based upon a pure quantum meruit a failure to show a price agreed upon is fatally defective. Witten v. Stout, supra; Farren v. McNulty, 277 Pa. 279, 121 A. 501.

 In the case at issue, plaintiff in his pleadings and throughout the trial, asserted an express modification. A careful review of the evidence, however, as pointed out above, has failed to substantiate this position. Accordingly, this particular portion of plaintiff's claim should not have been submitted to the jury; as under the law and the evidence, plaintiff is not entitled to recover.

 Credit Due the Defendant as a Result of the Cancellation of the Sewage Disposal Plant.

 After the Government cancelled the proposed sewage disposal plant, a credit became due the defendant from the original subcontract price. The amount to be deducted from the original subcontract could not be agreed upon, resulting in several conferences between representatives of the defendant, the Government and the plaintiff. In May of 1944 at a meeting held in New York in the office of the Regional Director of the Federal Housing Authority, plaintiff set forth his claim as to the amount of credit due, about $ 3,500.00. The Government at first indicated that it desired a credit of $ 12,000.00, but upon further examination reduced this amount to $ 8,500.00. The plaintiff would not agree to this, so the Government contracting officer, by way of compromise, added the $ 8,500.00 amount to the $ 3,500.00 asserted by the plaintiff, divided by two and determined the credit to be $ 6,000.00. Plaintiff has testified that this final figure was not agreed to by him; and there is some indication by the defendant's witnesses at this meeting that he did object to this mode of settlement. Change Order No. 77 was issued in the amount of $ 6,000.00 and the defendant asserts that Dobson is bound by this Change Order by reason of the provision of the Contract Documents. ...

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