
    ALLENTOWN SCHOOL DISTRICT VS. McCONN.
    The fact of a man being the arehiteet, superintending the erection of a sohool building, is not sufficient evidence of his authority to bind the sohool district, for •work or materials, outside of the written contract.
    A contractor’s work for a school district being unsatisfactory, he employed a sub-oontractor to remedy it; the sub-contractor without a new contract, is not entitled to recover from the sohool district, more than the amount remaining due to the first contractor.
    Error to the Common Pleas of Lehigh County. No. 175 July Term, 18.83.
    The action below was assumpsit brought by McConn against the Allentown School District. The School Board had contracted with Colt & Spence to introduce lieating apparatus into the school, subject to the approval of J. C. Sidney, the architect. The apparatus did not heat satisfactorily, and Colt & Spence were so notified, but failed to perfect the work. They had drawn all but $1,900 of the contract price.
    On February 3,1872, McConn presented himself to Mr. C. M. Bunk, president of the board, with the following letter from Mr. Sidney:
    C. M. Bunk, Esq.:
    Dear Sir: — This letter will be handed to you by Mr. McConn,. who was for twenty-five years foreman for Morris & Tasker, and who has had that and more experience in steam heating.
    Colt was here to-day, talking foolishly, as usual, but it ended in his asking me to get somebody to try and remedy the difficulty at his expense. I drew up the enclosed, the paper which I presume makes us all safe. If you think it does not, it would be better not to let McConn do anything with it. Please give Mr. McConn authority to go to the building, use the coals, and he will examine the apparatus and test it thoroughly.
    I have promised to go up on Tuesday morning and meet him there and discuss the matter. I hope I have done in this matter what is best. If you think otherwise, let him come back and I will pay his expenses. Truly yours,
    J. S. Sidney.
    P. S.- — Please be careful of the agreement.
    In the opinion of the Court, the other facts are set forth.
    The verdict and judgment were for the plaintiff below, for $2,091.78.
    The assignments of error, inter alia were:
    2. The Court erred in not affirming the fourth point of the plaintiff in error.
    4th Point. There is no evidence in the case to warrant the jury in finding that Mr. Sidney was authorized by the School Board to make any contract in relation to this work other than tnat contained in the written contract between the district and Messrs. Colt & Spence.
    Answer. This is answered in the negative.
    
      The Court erred in charging the jury as follows:
    “Mr. McConn, the plaintiff, testifies that he handed an envelope to Mr. Eunk on the occasion of this interview, but he does not know whether this paper, signed by Colt, was in it or not; he says he does not know what was in the envelope. Mr. Eunk says that he read that letter to Mr. McConn on that occasion.
    “The Court refers to you in the first to find whether this paper was brought by Mr. McConn to Mr. Eunk. The evidence on that point can hardly be said to be contradictory. Mr. McConn, while he says he does not know that the paper was included in the envelope, does not undertake to say it was not there. Mr. Eunk says it was brought there in' that way. If you find that such was the case, then I say to you that there is no evidence in the case from which you can find that Sidney had the power to make a contract with McConn different from what had been originally entered into with Colt & Spence. If you find that to be the case, then the rights of Mr. McConn are based upon the original contract with Colt & Spence, and this paper signed by Colt, by which Mr. Colt agreed that Sidney should employ some suitable person to make such changes and alterations in the heating apparatus as might be necessary, and that the amount which such person should be entitled to, by reason of making such necessary, changes, should be paid out of the same, which still remains in the School District’s hands under the contract of Colt & Spence.” * * * * * *
    “I have said to you, that if you find McConn brought this paper signed by Colt to Mr. Eunk, and that he thus became the successor of Colt to correct the work that Colt had put there, and make such alterations in the apparatus or changes that might be necessary, that then you should try the' case according to the directions which I have laid down to you in my charge thus far. Whether that was the fact depends upon the testimony of the witnesses, and consequently it'must be referred to you. If you should find that such a paper was not brought to Mr. Eunk, and was not acted upon by Mr. McConn and the School District, then McConn’s rights would have been tried according to some other rule. Then he -would be in the position of one who had been employed according to some other contract on other terms to do this work. .The only direct evidence outside of this paper that he was employed by any one, is the testimony of what Mr. Sidney said and did in regard to McConn doing this work. If you find.that Sidney was the agent of the School District; that they authorized him to superintend the putting in of this heating apparatus, and that Mr. Sidney made a contract with Mr. McConn different from the contract with Colt & Spence and .the contract of February 8d, 1872, with the plaintiff, then the School District would be bound by whatever Sidney had entered into; and, under the general instructions which I have given you, you would then try the rights of the parties according to whatever that contract might be. In other words, the Court does not feel justified in saying to you that you must find the contract was that McConn should make the changes and alterations necessary in the heating apparatus, as is shown by this letter of Colt. But if you believe that that letter was signed by Colt, a3 Mr. Bunk says it was, he saying that he knew his handwriting, then the contract originally entered into with Colt & Spence, the terms of which I have stated to you, and the paper of February 3d, 1872, signed by Colt, would constitute the contract under which Mr. McConn did his work. If under these directions you find that the plaintiff be entitled to recover, he will be entitled to recover for whatever he has proved the materials and apparatus furnished and the work done were worth.”
    J. B. Deshler and R. E. Wright & Sons, Esqs.
    
    for plaintiff in error argued that there was no evidence whatever to show that the School Board had entered into any contract with McConn; or that Sidney was authorized to do so by the Board ; and it was error to leave it to the jury ; Goshorn vs. Smith, 92 Pa. 435 ; Express Co. vs. Wile, 64 Pa. 205 ; Penna. R. R. Co. vs. Shay, 82 Pa. 198; Pittsburg & Steubenville R. R. Co. vs. Gazzam, 32 Pa. 340.
    
      Messrs. E. Harvey, Kauffman & Reninger, Esqs., contra,
    
    argued, that the agency of Sidney was sufficiently proved from the circumstances ; Valentine vs. Packer, 5 Pa. 333; Woodwell vs. Brown, 44 Pa. 121; Kelsey vs. Crawford Co. Bank, 69 Pa. 426; Bredin vs. Dubarry, 14 S. & R. 30; Gordon vs. Preston, 1 Watts 387.
    
      The Board paid for part of the materials ordered by 'Sidney and that was a ratification of his authority ; Trego vs. Lewis, 58 Pa. 463; Henderson vs. Cummings, 44 Ill. 325 ; Widner vs. Lane, 14 Mich. 124. The charge of the Court should be read as a whole; Horton vs. Chevington Coal Co., 2 Pennypacker 25.
   The Supreme Court reversed the judgment of the Common Pleas on April 13th, 1885, in the following opinion, per

Clark, J.

If the plaintiff had any right to recover in this case, it was certainly upon the footing of the contract made by Spence, as the agent of Colt, with, the Allentown School District. We find no evidence whatever which would justify a submission to the jury upon any other ground. When Mr. McConn first came to Allentown he came at the instance of Sidney, the architect, he brought with him and delivered to Mr. Hunk, the President of the Board of School Directors, the letter of 3d February, 1872, from Mr. Sidney. In that letter Sidney stated, very explicitly, that if McConn did anything toward changing the heating apparatus, it was to be done at the expense of Colt. An agreement, signed by Colt, was enclosed, and was as follows: “I hereby authorize J. C. Sidney to employ a suitable person to make such changes and alterations in the heating apparatus, now in the school building of the Sixth Ward, Allentown, Pa., as he may deem necessary, aid work, and all materials, to be done at my expense, and to be deducted from the amount to be paid me by the Board of Control, or, in case they do not pay it, I will do so. In no case is any responsibility taken from me on account of said contract, in 'case of the heater not being made satisfactory by the party so employed by J. C. Sidney. (Signed,) A. P. Colt.”

Mr. Hunk testifies, that, at the first interview, 'he read the letter and agreement to McConn ; told him of the contract with Colt & Spence; that Colt had failed to carry it out, and that if McConn wanted permission to go into the building under Colt’s direction he could do so, but that the School District would in no manner be responsible for any work he might do. He states most explicitly that he did not at any time authorize McConn to do any work for, or on account of, the district, or assume any responsibility whatsoever. The board, it is true, provided for the erection of two supply tanks, with the necessary pipes and attachments, but these were purchased and were afterwards paid for by the district. They are not involved in this controversy.

The plaintiff, MeConn, does not deny the statement of Runk. He says he delivered the letter which enclosed Colt’s agreement; that it was opened in his presence, “and that was the first he knew of it.” Upon his cross-examination he testified as follows: “Q. Did not Mr. Runk. say what Sidney had said, and read you that paper that had Mr. Colt’s name on it in the office ?” “A. I do not remember; he may have done it.”

“Q. Did not Mr. Runk say to you then that the School District would assume no responsibility at al-1, but that, if you wanted to go on for Mr. Colt and complete his contract, they would not interfere ?” “A. I cannot remember those sentences• he may have said those words, but I do not remember; I have no-doubt that if Mr. Runk says so he has done it.”

There is no evidence that the work was done under the direction of the School Board. Sidney, it is true, was the architect, but there is not the slightest proof that he had authority to bind the board by contract, or for work which might be done by his direction, independently of the already existing contract under which his duties were defined. The materials were to be furnished and the work done, subject to his approval. He was designated to judge between the parties as to the proper performance of the contract as it was written, with no power to change its conditions or alter its terms. He was, therefore, as the architect, no more the agent of one party than of the other; he was an arbiter between them. •

MeConn does not pretend to say in his examination that he was employed by, or had any direct contract' with, the board. He says that whatever he did was done- by direction of Sidney. “The first and the last,” ha, says, “was done under Sidney ; I knew no other man than Sidney.” The validity of his claim against the district, therefore, apart from his rights under the Colt contract, depends upon the alleged agency of Sidney, of which we have said there is not the slightest proof.

It is very clear, on the contrary, that all of the parties to this transaction thoroughly understood their relations to each other. ■The officers of thé School District adhered to their contract with Colt, but condemned the work ; permitted McConn to proceed under Colt’s direction, but refused to assume any responsibility. Colt admitted the failure of the apparatus he had provided, and authorized Sidney to employ some suitable person to make such changes as he might deem necessary. Sidney employed McConn, and McConn, notwithstanding the refusal of' the district to assume responsibility, went on with the work. He opened an account in his books, in exact accordance with the true nature of the transaction; he charged the various items in the form following:

Philadelphia, April, 1872. ■
Sixth Ward School, Allentown.
A. P. Colt, per order of <T. C. Sidney, Agt.,
1872. To John McConn, Dr.
Peb’y 5, To fare, board, &c., &c., - . - $13.25
The several items charged in this account amount in the aggregate to $1,715.86, and a certificate of Sidney, the architect, is appended as follows: “I certify this bill to be correct, and request the Board of Controllers to pay Mr. McConn the amount, as directed in the order of Mr. Colt. (Signed,) J. O. Sidney.”

What was said and what was done plainly indicate that all had a uniform and perfect understanding of their relative rights and responsibilities. Upon this -branch of the case there is -no conflict in the evidence ; no contradiction of the witnesses ; the testimony is uniform and consistent. Upon what considerations the jury may have arrived at the verdict we cannot, of course, know, and this is the difficulty in this case. It is clear, however,. that there was no evidence of any responsibility upon the .part of the School District, outside of the contract with Colt & Spence. McConn’s right to recover against the defendants on the evidence before us, must be determined upon the considerations applicable were the suit brought' by Colt. If nothing more can be shown, it would seem, therefore, that, for the protection of the district, and to justify a recovery, the record should be made to conform to this character of claim.

We are of opinion that the second and third assignments of error are sustained. The judgment is therefore reversed, and ‡ venire facias de novo awarded.  