
    KLINE vs. FOSTER.
    Where a plumber agreed to do the plnmbing for certain houses, as cheap or cheaper than anyone else, it is not such a special contract as requires a special declaration.
    The plaintiff's books in such case are evidence to prove the value of the labor done and the materials furnished.
    In such case, evidence to show the wholesale price of the materials was Rejected.
    Error to Common Pleas of Schuylkill County, No. 56, January Term, 1874.
    This was an action for a balance due for plumbing. Foster, the plaintiff below, swore inter alia, “I undertook to do the whole plumbing and gas fitting for the two Third Street houses. I was to furnish all the material, and was to do it as cheap as anybody else, and I was to do the work. Kline said he would furnish me furniture as cheap as anybody else. There Í3 no dispute about the price of furniture. I was to get what furniture I wanted in pay for work. Nothing else was said about taking all my pay in furniture.”
    During the trial the books of Foster were offered in evidence, to prove the kind and value of the services rendered and materials furnished. The defendant proposed to ask witnesses what was the wholesale price of materials furnished in order to show an overcharge. This was objected to and ruled out.
    The following is the charge of the Court by
    
      Pershing, P. J. :
    Gentlemen or the Jury : The plaintiff in this case claims for material furnished and work done as plumber and gas fitter in several houses of the defendant in the borough of Pottsville. The charges on his books amount to $665.45, upon which he admits credits to the amount of $403.50, leaving the balance claimed in this action of $261.95.
    The defendant alleges that the work done by the plaintiff' was not of a workmanlike character, that the items are overcharged^ and that the plaintiff agreed to take his pay in furniture.
    The first question for your consideration is, what was the agreement between the parties ? Upon this there is some conflict in the evidence, which it is your duty to reconcile. If you cannot do this, you will determine on which side the truth rests. There is no dispute that by the verbal agreement developed in the testimony Foster was to find the materials and do all the work required in the houses of the defendant, on Market and Third streets, and that he agreed to do this at as low prices as “anybody else.” The dispute at this point is as to how the plaintiff was to be paid. He testified that he was to take only what furniture he needed. The defendant testifies that he was to take his whole pay in furniture. In this connection you will take into consideration the testimony of Jonathan Wright, Esq., who states that he was present when Foster wanted “sofa furniture” from Kline, and that the latter refused till a settlement was made, when, if he owned him (the plff.) anything, he was willing to give him furniture according to agreement. Now, if you conclude from the evidence that the plaintiff agreed to take his pay in furniture, he is bound by his contract, and cannot sue for money unless you are satisfied from other evidence that the plaintiff demanded furniture from .the defendant, who refused it. If there was a demand before suit brought, and a refusal upon the part ot the defendant, and you are satisfied that at the time of the demand the defendant was indebted to the ■ plaintiff, then we instruct you that this action can be maintained on the part of the plaintiff. We repeat, it is your province to determine what the terms of the agreement were. Kline could not compel Foster to take furniture if the agreement was for money. Nor can Foster compel Kline to pay him money if the agreement was for furniture, except under the circumstances of demand and refusal referred to.
    The credits given by the plaintiff to the defendant are for furniture. That demand was made by the plaintiff for the furniture which was refused by the defendant, is a fact established by the testimony of both. Whether the demand was made before or after the bringing of the suit may in one aspect of the evidence become a question of some importance. Mr. Wright, to whose testimony your attention has been directed, states that the demand made by the plaintiff in his presence, was after the bringing of the suit. The plaintiff testified that he demanded furniture before the bringing of the suit, and was refused it by the defendant. The defendant testifies that the plaintiff made several demands for furniture, which he (the defendant) refused to give him till there was settlement, as he thought plaintiff was overpaid, and as we understand him when last on the stand, suit had then been brought by the plaintiff.
    In his first examination, speaking of the proposed reference of this controversy to arbitrators, the defendant says : “He (the plfl.) wanted a parlor set of furniture, and I would give him no more till I knowed whether I owed him anything. Since the suit was started Foster asked me again for this set of parlor furniture.” (The Court here read the testimony of deft, at length to the jury.) Keeping in view all the evidence in this part of the case, we say to you that if you find the plaintiff did agree to take his whole pay in furniture, and made no demand for the balance óf his account, until after he instituted this suit, that a demand was then too late, and he cannot recover. If you find, however* that he made his demand before he commenced suit, then he can maintain this action if the defendant failed to meet the demand, and at the same time was indebted to the plaintiff'. If, in your opinion, the evidence preponderates that the plaintiff agreed to take only so much furniture as he wanted, you, we think, will have little difficulty on this part of the ease.
    Here we are requested by counsel to call your attention to the testimony of Andrew Carver, a witness for the defendant. In his examination in chief Mr. Carver stated the plaintiff was to be paid in furniture. On cross ex. it appeared he was told this by the defendant and had no other knowledge on the subject. His statement was not therefore evidence.
    The books of the plaintiff have been admitted in evidence. The defendant has requested us to instruct you that under the evidence the materials found and the work done by the plaintiff are not subject of book charges, and that the books are not evidence of these, nor of the prices charged.
    [We decline to so instruct you. It is true that book entries are not competent evidence that there is a special contract. The agreement between the parties in this case is not sufficiently special in its terms to come under the general rule. The amount of work to be done, the materials to be furnished, and the prices to be paid were not stipulated. As the work and materials were done in and furnished for several houses on two different streets, it is difficult to see how the keeping of the books, showing the dates and items could be dispensed with.]
    [You have heard the evidence of the verbal agreement entered into between the parties, by which their controversy was referred to Messrs. Davis and Smith for settlement, their decision to be binding. Whether this was before suit was brought or since is disputed. It seems to us that both plaintiff and defendant acted in good faith in this matter. Both, it seems, requested the referees to act, and a day was fixed for their meeting. This was a sensible arrangement, and it is. to be regretted that it resulted in a failure.
    Messrs. Davis and Smith both testify that they refused to serve, and thus at the day appointed they failed to attend, for the purpose for which they were selected. No effort was made or proposition submitted to procure others in their places. Under the evidence we decline to instruct you as requested, that this agreement is still binding, and that defendant is entitled to recover. This case differs very materially from that of McManus vs. McColloch, 6 Watts 357, cited by counsel. Had Messrs. Davis and Smith consented to serve and made an adjudication between the parties, it would have concluded them. If this suit was pending at the time this agreement was made, which, as we have already said, is denied, it would not necessarily end it, until the costs were provided for, even when the agreement to refer was in writing. Summy vs. Heistand, 15 P. F. S. 300.]
    
      [The remaining point submitted by the defendant relates to the effect of the testimony of W. L. Davis. Mr. Davis is a plumber and gas fitter, and therefore qualified to estimate the value of the work done by the plaintiff, and as the plaintiff agreed to do the work as cheap as anyone else, if Mr. Davis’ testimony shows an overcharge on the part of the plaintiff, it would be your duty to abate it. Mr. Davis estimates the value of the work which he saw and examined, including the introducing the water from the main pipe in the street, $420. This estimate includes material and is confined to the Third street houses. It does not include an iron hydrant, the digging of the ditch from the street, nor any work done or material found for the Market street houses of the defendant. You will take into consideration the work and materials which Mr. Davis includes in his calculation of $420.00 and any work done or materials found by the plaintiff, which Mr. Davis excludes from his estimate. The defendant is entitled to have deducted from plaintiff’s account, any overcharges which the evidence establishes to your satisfaction, as well as any loss occurring through bad workmanship. It appears that the plaintiff was to put two ranges in for the defendant, and that these were procured by the defendant himself, and paid for to Mr. Kearns. The plaintiff has not included these in his account, but if you find that defendant sustained any loss by the failure of the plaintiff to purchase the range, he is entitled to compensation.]
    We refrain from going over the evidence more in detail. It is all for your consideration. On some points either the plaintiff or defendant is mistaken in his recollection. It is peculiarly the province of a jury to decide between litigant parties in contro-versies of this kind, and we feel confident that your verdict will do justice to both plaintiff and defendant.
    September 8, 1873, verdict for plaintiff for $278.75. Kline then took a writ of error complaining of the rulings of the Court as to the admission of testimony and of the portions of the charge in brackets.
    
      James Ryan, Esq., for plaintiff in error argued:
    That Kline was entitled to have the materials furnished as cheap as he could buy in the open market. That the contract was such as required a special declaration. The book entries are not evidence when there has been a previous contract; Lonergan vs. Whitehead, 10 Watts 249; Nickle vs. Baldwin, 4 W & S. 290; Alexander vs. Hoffman, 5 W. & S. 382; Schnader vs. Schnader, 2 Casey 384; Parker vs. Donaldson, 2 W. & S. 19.
    The agreement to arbitrate, admitted to both sides, bars the plaintiff’s right to recover; there having been no revocation thereof.
    
      Sol. Foster, Esq., contra.
    
    It cannot be assumed that Foster agreed to furnish the articles at the wholesale price.
    The books had been admitted without objection and it would have b<ben error to throw them out at the close of the trial. They were rightly admitted because there was no specific work to be done or price to he paid.
    The contract' is severable as to the different articles; Story on Contracts, Sect. 24.
    The arbitrators would not serve. An arbitration does not bar a suit unless the reierence had been made and determined; Kill vs. Hollister, 1 Wils 129; Harris vs. Reynolds, 7 Adolphus & Ellis N. S. 71; Thompson vs. Charnock, 8 T. R. 139.
    A submission without an award will not bar a claim to an account; Carr vs. Raleigh, 2 Phila. 242.
   The decision of the Court below was affirmed on March 16, 1874, in the following opinion,

Per Curiam.

The agreement in this case was not such a special contract as required a declaration specially framed. An action of general indebitatus assumpsit would lie, and a declaration in the common courts would be proper. We discover nothing in any of the assignments of error requiring a reversal of the judgment.

Judgment affirmed.  