230 Pa. 141 | Pa. | 1911
This action was to recover for labor and materials furnished for the completion of a building. The statement of claim contained the common counts in indebitatus as-sumpsit and on a quantum meruit and a detailed statement of the work done and materials furnished together with an item of profit of ten per cent on the cost. Various grounds of defense were set up by the affidavit of defense, but the employment was admitted and an express agreement to pay cost plus ten per cent was averred. At the trial the plaintiff proved an oral contract as averred by the defendant. It is claimed that there was a variance between the allegations and the proofs and that the plaintiff was not, under the pleadings entitled to recover on the express oral contract.
At common law there was not a variance where an express promise, not under seal, and fully performed was proved under a declaration in indebitatus assumpsit: Kelly v. Foster, 2 Binney, 4; Harris v. Ligget, 1 W. & S. 301; Eckel v. Murphey, 15 Pa. 488; Brown v. Foster, 51 Pa. 165. In the case last cited it was said: “However anomalous it may seem that the law should imply a promise when there is an express one, it is no longer to be
We find no merit in any of the assignments of error and the judgment is affirmed.
