Crawford & Moyes v. McKinney

165 Pa. 609 | Pa. | 1895

No. 77, Oct. T., 1894.

Per Curiam,

This and another action—both arising out of the same contract that was the subject of contention between the parties in No. 76 of this term, in which an opinion has just been filed— were tried together. In the case referred to, suit was brought to recover the second payment provided for in the contract. This and the other action that was tried with it were brought to recover the last two payments respectively under the contract.

The claim in this was for $700 alleged to be payable when the plastering was completed, and, in the other, it was for $718, alleged to be payable when the house was completed. The main contention of the defendant was that the contract is entire and that no action could be maintained thereon until the building was fully completed according to the contract; and that inasmuch as the plaintiffs failed to so erect and complete the house, they were' not entitled to recover in either action. As to the alleged entirety of the contract, the learned court rightly ruled against the defendant; and the cases' turned mainly on the questions of fact, whether or not the contract, on the part of the plaintiffs, had been substantially performed, and whether the defendant had accepted the house as completed ;• and if not, what deduction from the contract price, if any, should be made for defective workmanship, etc. These and other questions of fact presented by the testimony were for the jury, and to them they were submitted with instructions that appear to be free from substantial error.

It is unnecessary to consider the specifications in detail. The refusal of the court to order a judgment of nonsuit, on defendant’s motion, is of course not assignable for error. An examination of the record with reference to each of the remaining seven specifications has satisfied us that neither of them should be sustained.

Judgment affirmed.

No. 78, Oct. T., 1894.

Per Curtam,

Jan. 7,1895:

This and another case, between the parties to this action and growing out of the same contract, were tried together, and involve substantially the same questions. In that case, No. 77 of this term, an opinion affirming the judgment, has just been filed. For reasons briefly suggested in said opinion, the judgment in this case should be affirmed.

Judgment affirmed.