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HEWES v. MCWILLIAMS (10/11/63)

October 11, 1963

HEWES
v.
MCWILLIAMS, APPELLANT.



Appeal, No. 292, Jan. T., 1962, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1959, No. 1249, in case of Walter L. Hewes, Jr. v. John G. McWilliams and Elizabeth M. McWilliams, his wife. Judgment affirmed.

COUNSEL

Daniel B. Michie, Jr., with him Fell & Spalding, for appellants.

Daouglas D. Royal, with him Greenwell, Porter, Smaltz & Royal, for appellee.

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

Author: Roberts

[ 412 Pa. Page 271]

OPINION BY MR. JUSTICE ROBERTS

Appellants, owners of a tract of land in Chester County, and appellee, a road building contractor, entered into a written contract on June 22, 1959, for the construction of a road on appellants' property at a cost of $23,150. Progress payments were to be made from time to time on the basis of 85% for 100% work done, the balance to be paid thirty days after completion. Construction was begun in July and continued until September, 1959, when all work was halted because of a dispute between the parties. Up to that time, a total of $9,900 had been paid, the last payment being about August 23. On September 1, appellee submitted a request for an additional $6,000, which appellants, contending that sufficient work had not been done, refused to pay on advice of their consulting engineer. At the same time, appellants demanded that appellee construct eight foot shoulders along the length

[ 412 Pa. Page 272]

    of the roadway and perform certain other work. Appellee argued that the requested work was an "extra", i.e., not required under the contract, but was willing to comply for an additional $1,080. Appellants refused and insisted that the work was required by the contract.

On September 24, appellants notified appellee in writing that failure to complete the road without delay would constitute a default under the contract, in which case appellants would obtain the services of another road builder and look to appellee for the additional cost. Another firm was, in fact, employed, and the road was completed at a cost of $10,550. (This figure included some work admittedly not called for in the original contract.)

Appellee brought suit against appellants for the cost of his materials and labor already furnished, less payments received, and for loss of profit sustained by reason of appellants' conduct. The action was tried before a jury which returned a verdict of $7,650 in favor of appellee. Appellants' motion for a new trial was denied; this appeal followed.

The major contention raised by appellants is that the trial court erred in interpreting what they termed an ambiguity in the contract rather than permitting the jury to resolve it as a factual question. The court below concluded, and appellee here urges, that there is no ambiguity in the contract. The pertinent clauses are as follows: "Labor and material to clear 40' right of way of all trees and debris. Provide necessary fill for 20' cartway and properly graded. Install 2-50' lengths of 36" and 1-50' length of 30" reinforced concrete pipe location of same as specified. For paving of Road apply 6" stone ballast properly rolled and ...


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