Bernheisel v. Smothers

5 Pa. Super. 113 | Pa. Super. Ct. | 1897

Opinion by

Rice, P. J.,

Whether or not there was an oral contract whereby the plaintiff was to receive a per diem compensation for services to be rendered beyond and outside the services stipulated for in his written contract was a question of fact. There was testimony on both sides, and, although, as the learned trial judge well says, the witnesses for the defendants were more numerous than those for the plaintiff, the value of their testimony was necessarily impaired by the significant fact, that, if (as they agreed in testifying) there was no such additional contract, the defendants had paid to the plaintiff two or three hundred dollars more than they were bound to pay; whereas if the contract was as the plaintiff declared it to be, these payments were natural and proper. It is not our province, however, to determine on which side of the scale the evidence preponderates; it is sufficient for us to know that there was ample evidence bo warrant the submission of the question of fact to the jury, and that it was fairly submitted. The verdict of the jury having established the fact that there was such a contract, was there sufficient proof of the items of the plaintiff’s claim to warrant a recovery in his favor ? It is needless to say that a mechanic’s claim is a claim only, and its averments prove nothing on the trial. But the claim appears not to have been offered or admitted for any snch purpose. True the plaintiff did not specify in his testimony each day that he was present superintending the work, yet he did testify as to the nature of the services rendered by him, and that he was present, either personally or by his representative, superintending the work each day that it was in progress. He further testified without objection that the total amount of his claim was |2,270. This by his testimony was made up of the sum of f 500 stipulated to be paid him for drawing plans and architectural supervision by the written contract, and the balance was for services rendered by him under the oral contract, at the stipulated rate per diem for each day that the work was in progress. There was no controversy as to the time when the work was begun or when the building.was completed. Now, while it would not be possible to ascertain from the testimony the specific days of each month and year on which he was employed for the defendants, yet it was possible for the jury to determine with absolute certainty, if they believed the plaintiff, the number of days between the beginning and the completion of the work that he was so employed. If the defendants desired more detailed evidence of the particular dates they should have insisted upon it while the trial was in progress. Owing to the contest over the main question of fact both parties seem, to some extent, to have lost sight of this matter; but there was sufficient evidence to go to the jury, and the defendants have no reason to complain that they did not allow the plaintiff for the full number of days claimed. "We fail to see in what respect the instruction complained of in the first specification of error was either confusing or misleading. It seems to us to have been well adapted to the case as it was presented bj^ the testimony.

The question raised by the second and third assignments of error were fully and ably discussed, and correctly decided by the learned trial judge in overruling the motion for judgment non obstante veredicto. It would be idle for us to attempt to add anything, and for the reasons given in his opinion those assignments are overruled.

The judgment is affirmed.