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CONSOLIDATED TILE AND SLATE COMPANY v. FOX (03/19/63)

March 19, 1963

CONSOLIDATED TILE AND SLATE COMPANY
v.
FOX, APPELLANT.



Appeal, No. 3, Jan. T., 1963, from judgment of Court of Common Pleas of Montgomery County, June T., 1959, No. 817, in case of Consolidated Tile and Slate Company v. Benjamin Fox, William L. Fox, and Irwin Fox, individually and trading as Fox Brothers. Judgment affirmed.

COUNSEL

Daniel A. Rothman, for appellants.

David F. Binder, with him Harold W. Spencer and Edward L. Wolf, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Eagen

[ 410 Pa. Page 337]

OPINION BY MR. JUSTICE EAGEN

The plaintiff entered into a written agreement, as a subcontractor, to provide the labor and material for ceramic tile work in an apartment building for which the defendants were the general contractors.*fn1 This action of assumpsit sought recovery of the balance due under the agreement and an additional sum allegedly due for extra material and labor supplied at the defendants' request and for which they allegedly agreed

[ 410 Pa. Page 338]

    to pay beyond the sum stipulated in the contract. The jury found in plaintiff's favor in the sum of $32,324.50. Following the denial of a motion for a new trial, this appeal was filed from the judgment entered on the verdict.

No issue is raised as to plaintiff's right to recover an award. The amount thereof is questioned. It is not seriously disputed that a balance of $15,000 remains unpaid under the terms of the original contract. Interest on this unpaid sum is calculated to be an additional $2000. Defendants contend that the terms of the contract precluded plaintiff from collecting for the so-called "extras" and that the trial judge erred in admitting parol testimony in explanation of certain language in the contract which they maintained is clear and unambiguous.

The contract provided, inter alia, that the plaintiff was "to furnish all labor and material ... in accordance with certain plans and specifications*fn2 in the possession of the said party of the first part [the defendants], which have been examined by the said party of the second part [the plaintiff]." It further stipulated that, "There shall be no credits for omissions and no extra charges for additions or alterations which may be required to complete the work." The contract was executed on January 29, 1958; before this a set of plans and specifications was placed at the disposal of the plaintiff.

After the work commenced, substantial alterations in the original plans were made. A new set of plans and specifications was prepared by an entirely new architect and the intended use and character of certain floors in the building were radically revised. Whereas, the original plans encompassed that ...


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