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WAGNER v. GRAZIANO CONSTRUCTION CO. (11/18/57)

November 18, 1957

WAGNER, APPELLANT,
v.
GRAZIANO CONSTRUCTION CO.



Appeal, No. 175, March T., 1957, from order of Court of Common Pleas of Allegheny County, Oct. T., 1956, No. 1680, in case of Edward J. Wagner v. Graziano Construction Co., Inc. Order reversed.

COUNSEL

James W. Daub, for appellant.

I. E. Binstock, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Musmanno

[ 390 Pa. Page 446]

OPINION BY MR. JUSTICE MUSMANNO

Edward J. Wagner entered into a contract with Graziano Construction Company to paint and supply materials in connection with the construction of the Heights Plaza Shopping Center in Natrona Heights by the Graziano Company as general contractors. The agreement between Wagner and Graziano provided, inter alia: "Without invalidating this contract the Contractor may add to or reduce the work to be performed hereunder. No extra work or changes from plans and specifications under this contract will be recognized or paid for, unless agreed to in writing before the extra work is started or the changes made, in which written order shall be specified in detail the extra work or

[ 390 Pa. Page 447]

    changes desired, the price to be paid or the amount to be deducted should said change decrease the amount to be paid hereunder."

Wagner claims that while fulfilling his obligations under the contract he was orally requested by the defendant's general superintendent to perform some extra work and supply additional material, the superintendent assuring him that such orders did not need to be in writing, despite the provision to that effect in the contract. Wagner states that then after acceding to the oral demands of the defendant's general superintendent, Graziano refused to pay for the supplemental work and additional materials. He accordingly brought suit against Graziano for the amount of $5,192.22. Graziano filed preliminary objections, demurring on the ground that the complaint failed to state a cause of action because it was based on oral orders which were excluded by the contract. The lower Court sustained the objections and dismissed the complaint. Wagner appealed.

In his complaint Wagner averred: "In directing plaintiff to perform work not within the scope of work to be performed under the written contract, defendant's general superintendent refused to sign written work orders as required by said written contract: he informed plaintiff that written work orders signed by him would not be required and directed him to perform the extra work without the written work orders, informing plaintiff that appropriate adjustments would be agreed upon at a later date."

For the purposes of the demurrer, this allegation, together with those averring the superintendent's authority, must be accepted as established fact. Thus, if we assume that the defendant's authorized agent informed Wagner that the requirement for ...


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