undertook to affix the shelf angles to the spandrel beams. Mellon started this work in June, 1956. Despite timely warning by Southern, many of these shelf angles were not level and in line as required for proper stone setting. I find that Mellon negligently failed to properly set these shelf angles and failed to promptly adjust them. These negligent omissions substantially interfered with and hindered Southern in the contemplated normal performance of the stone contract. Southern promptly complained to Mellon and demanded reimbursement for its additional costs so caused. Mellon agreed to discuss the bill for these costs at the end of the job.
The bulk of the shelf angle adjustments were tardily made by Mellon prior to November, 1956, but a number were made in the succeeding three months. This inexcusable negligence, unanticipated by Southern, constituted a breach of contract on the part of Mellon which caused Southern damages for which Mellon is liable. See Henry Shenk Co. v. Erie County, supra, 319 Pa. at pages 104-106, 178 A. at page 664,
citing with approval McPherson v. San Joaquin County, 6 Cal.Unrep. 257, 56 P. 802, where the breach was furnishing defective materials; George A. Fuller Co. v. United States, 69 F.Supp. 409, 108 Ct.Cl. 70, where the breach was delay in furnishing models.
Article 31 (Exhibit 3B),
made applicable to the subcontract by Article 37, provides that one party shall be reimbursed for damages caused by 'any wrongful act or neglect of the other party'. Article 31 of the contract in the Shenk case is substantially similar to the first paragraph of Article 31 in the instant case. These damages are to be distinguished from increased costs caused by excusable and contemplated delays which cannot be recovered. Article VI, Article 18, Article X, and Article 4 (quoted in footnote 5). In commenting on similar provisions pertaining to delays, it was stated in Henry Shenk Co. v. Erie County, supra, 319 Pa. at page 104, 178 A. at page 664:
'Such provisions have no reference to an affirmative or positive interference on the part of the owner (contractee) * * * apart from the contract, or ordinarily to a failure to act in some essential matter necessary to the prosecution of the work unless delay in performance is contemplated by the contract; these interferences or failures may cause damages in other ways than that contemplated by the provision against delays.' (Emphasis supplied.)
See, also, Sheehan v. City of Pittsburg, 213 Pa. 133, 62 A. 642, a breach of contract case which is explained in Frederick Snare Corporation v. City of Phila., 325 Pa. 460, 463, 190 A. 889.
In every contract between a contractor and subcontractor, an implied promise exists on the part of the contractor that he will do nothing to prevent, interfere, or hinder the subcontractor in his performance or increase the cost thereof. Kress House Moving Co. v. George Hogg Co., 263 Pa. 191, 195, 106 A. 351; Williston on Contracts, rev.ed., vol. 5, §§ 1293A, 1318.
In the instant contract, not only is the promise implied, but it seems to be expressed in Article 31 (footnote 10).
When the subcontractor sustains damages by a negligent act chargeable to the contractor, as was the negligent failure to install the shelf angles properly and promptly, it is a breach of this clearly implied and expressed contract, for which the contractor is liable for the damages sustained by the subcontractor. Sheehan v. City of Pittsburg, supra; Restatement, Contracts 315(1), and see cases cited in footnote 11. The subcontractor is not obliged to abandon the work and sue for damages, but he may proceed to complete the work and then claim damages. Sheehan v. City of Pittsburg, supra; Studer v. Rasmussen, 80 Wyo. 465, 344 P.2d 990, 998; Williston on Contracts, vol. 3, rev. ed., § 704, at page 2027; Corbin on Contracts, vol. 3A, 1960 ed., § 755, at page 503; 17 C.J.S. Contracts § 502b(3)(a), page 1060.
It is impossible to determine exactly Southern's damages attributable to the breach of the stone contract as distinguished from its increased costs attributable to contemplated and excusable delays. As stated in Chalender v. United States, supra, 119 F.Supp. at page 191, I do not believe that this difficulty should bar plaintiff from all recovery if a reasonable basis for damages can be found. Southern proved that its increased costs for delays covering 2 months and 6 days (68 days) amounted to $ 10,330. There is evidence that Southern's stone setting was delayed six weeks (42 days) by Mellon's defective work on the shelf angles (T., pp. 193, 198 ff.). Accepting this to be the fact, I think it affords a reasonable basis on which to estimate Southern's damages for the breach. Chalender v. United States, supra; George A. Fuller Co. v. United States, supra. Accordingly, I conclude that the proportionate sum of.$ 6,380 for six weeks' delay will compensate Southern for the damages caused by Mellon's breach of the stone contract, which together with damages for detention amount to total damages in the sum of $ 7,496. See Babayan v. Reed, 257 Pa. 206, 101 A. 339; J. E. Faltin Motor Transp., Inc. v. Eazor Express, Inc., D.C.W.D.Pa., 172 F.Supp. 175, 180, affirmed, 3 Cir., 273 F.2d 444; Lackawanna Iron & Steel Co. v. L. & W.V.R.R., 299 Pa. 503, 149 A. 702; Restatement, Contracts § 337, comment on clause (b)i.
Southern's Claim for Extra Work
Southern contends that it is entitled to $ 217.58 for extra work performed by it under the stone contract. I have no doubt that the work was performed. However, Southern's foreman, Hutter, failed to procure signed work orders from Mellon for five items of extra work. Subsequently, an audit by Southern revealed the omissions and it requested payment from Mellon. Mellon refused (Exhibits 47, 45) and invoked the provision of Article X (Exhibit 2) which provides:
'All extra work shall be done according to the provisions relating to the original work and shall only be done at the written order of the Contractor, otherwise no charge can be made or collected therefor.' (Emphasis supplied.)
I conclude that Southern is not legally entitled to the $ 217.58 claim.
Southern also claimed $ 67.40 (invoice 560E28) for extra work performed in patching around the door between Rooms B-23 and B-18 in the basement (Exhibit 49 and attachment). This work was ordered by Mellon's superintendent, Porter. The attachment is a time sheet signed by Porter. Southern's foreman performed the work as an extra. Mellon's president, Peters, denied that it was. This work was not marked by cross-hatching as masonry on Southern's original plans. I find that this work was not included in the original masonry contract and is, therefore, extra work which was ordered by the contractor and verified by the time sheet signed by Mellon's superintendent. It is to be observed that the architect, Bott, and the superintendent, Porter, did not deny these facts at the trial. I conclude that Southern has proved its claim for $ 67.40.
Credit Due Mellon for Completing Southern's Contracts
On January 10, 1958, no more work being then available, Southern asked Mellon if it would entertain a credit in lieu of Southern's completing the contracts. Mellon agreed providing that the credits were satisfactory. A survey of the uncompleted work was made by both parties. Southern calculated the credit on this uncompleted work to be $ 1,513.81 if the work had been done pursuant to the contract according to Mellon's representations and the Progress Schedules (Exhibits 6 and 12). This proposed credit was not acceptable to Mellon. On February 1, 1958, Mellon issued a 48-hour notice to Southern to complete the contracts (defendant's Exhibit 7-Z-10) pursuant to Article VII (Exhibits 1 and 2). Southern refused and Mellon completed the work required by both contracts.
Pursuant to Article VII, Mellon is entitled to deduct the costs of completion. P.L.E. Contracts § 296. But what are those costs? Mellon alleges that its actual costs in performing this work amounted to $ 3,662.54 and issued its invoice in that amount. This invoice was not offered in evidence. The particulars of the work involved in the completion were not proved, although Mellon in order to make sure of the actual cost thereof had Mr. Shack, a representative of the Architect, check the number of workmen employed, the hours they worked, and the work performed. Mellon's superintendent, Porter, knew the details of the completion work, but he did not testify thereto. Mr. Shack was not called to testify to the details of the work which he allegedly had verified. The testimony of Peters, Mellon's president, was not convincing since he lacked first-hand knowledge and testified from information received from Porter.
In view of the controversy between the parties on this score, I think Mellon had the burden of proving the items of costs going into the completion work pursuant to Southern's contracts eliminating any extras or changes. In my opinion, it failed to sustain its burden although within its power to do so. I conclude, however, that Mellon should be allowed credits, as Southern admits them to be due, i.e., on the stone contract in the sum of $ 709.72, and on the masonry contract in the sum of $ 804.09 (Exhibit 43; plaintiffs' brief, p. 45).
Mellon's counterclaim is based on an alleged breach by Southern of the stone contract. It seeks to recover the sum of $ 19,490 for the cost of an alleged 2-month delay caused by Southern when it laid off two masons at a crucial time, I.e., for about one month beginning October 19, 1956 (defendant's Exhibits 13 and 14).
A combination of several conditions caused delay in the performance of the stone contract (see Exhibits 35, 65; T., pp. 515-523), not the least of which was Mellon's own negligence in failing to properly set the shelf angles. I find that Southern did not contribute to the alleged delay in any substantial extent. Mellon did not even report this alleged delay on the part of Southern to the Owner in its summary of delays (Exhibit 65). Neither did it claim damages for the alleged breach of contract until this suit was brought. Moreover, from October 19th to November 16th, Southern had at least 4 masons on the job; the layoff of 2 masons did not materially slow down the stone work (plaintiffs' Exhibit 14); and any delay for which Southern is responsible was minimal and certainly not 2 months. In my opinion, Southern did not breach the stone contract; but even if it did, no reasonable basis for computing the damages flowing therefrom has been proved.
Judgment will be entered against Mellon on the counterclaim.
Mellon is liable on the contracts
in suit in the following amounts:
Stone contract $ 56,190.00
Masonry contract 161,601.00
Written change orders--
Field orders approved--
Invoice 560E28 for patching
around door--extra work 67.40
Mellon is entitled to the
Payments by cash--
admitted $ 220,966.43
Credit on account of
completing masonry work 804.09
Credit on account of
completing stone work 709.72
Credit on account of
services furnished--admitted 2,157.17
The balance due to Southern is: $ 5,183.51
Interest thereon from February
1958 to April 10, 1961: 984.87
Damages due to Southern for
of stone contract: 7,496.00
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