198 A. 923 | Pa. Super. Ct. | 1938
Argued March 10, 1938. This is an action in assumpsit. Plaintiff, a contractor and lumber dealer, seeks to recover the sum of $332.70 for lumber, material and labor furnished the defendants in the years 1927 and 1928. It was conceded that the lumber, material and labor went into the dwelling occupied by defendants as husband and wife. Plaintiff claims the material was furnished at the special instance and request of both defendants.
Joseph Harakal defended upon the ground that the statute of limitations had run as against the claim. His wife, Anna Harakal, denied that the goods had been sold and delivered to herself and her husband jointly at their joint request.
This action was instituted on Nov. 26, 1935, and the tolling of the statute depended upon a certain payment of $20, plaintiff claiming the payment was made on Nov. 30, 1929. Defendant claimed that the last payment was on April 9, 1929. If there was no payment on Nov. 30, then the statute of limitations had run and the action was begun too late.
This case was submitted to the jury who found a verdict in favor of the plaintiff against both defendants in the amount of $332.70 and interest. Defendants' motion for judgment n.o.v. was denied. This appeal followed, but was subsequently discontinued as to the defendant, Joseph Harakal.
At the trial of the cause, defendants' counsel placed in evidence certain deeds showing that Joseph Harakal alone acquired title to the premises on the 27th of August, 1912 from the Coxe Grove Realty Company and on the 15th of January, 1935, executed a deed to Susan Wargo, who by deed of the same date, conveyed *187 title back to Joseph Harakal and Anna Harakal, his wife. The oral testimony on the question of ownership of the property was as follows: "By the Court: Q. Who owns that property? A. (Mrs. Harakal): It is in both our names, I suppose. Q. On both names? A. Now." No more evidence as to the ownership at the time plaintiff furnished the lumber for its remodelling appears in the record.
Mrs. Harakal testified that she "never made no contracts or nothing" with Mr. Gower, nor had she asked that any material be delivered, but that her husband, Mr. Harakal, made the arrangements — did the business with Mr. Gower. She also testified, however, that she lived in the house when the material was furnished, saw the repairs being made, and made no objections to the repairs; further she admitted owing plaintiff the money and having made payments on account to plaintiff.
On the stand, Mr. Harakal, when asked whether he admitted owing plaintiff the money, answered, "Sure, I owe him money."
Mr. Gower was called by defendant's counsel for cross-examination. He testified that his "dealings" were with both Mr. and Mrs. Harakal, but with Mrs. Harakal most of the time; that Mrs. Harakal made all the payments and Mr. Harakal none of them; and that Mrs. Harakal "ordered the carpenter what to do."
Where there is ample testimony to support the findings of the jury, they will not be disturbed upon appeal: Rose v. Cauffiel,
The appellant here also contends that the court below committed prejudicial error in its charge to the jury. In the instant case, the court, at the conclusion of the charge said: "Is there anything else you desire me to say?" Counsel for defendants then requested the court to call the attention of the jury to a letter by plaintiff's attorney and to a statement or bill rendered for material "sold to Joseph Harakal." This the court did. No further requests were made by either counsel nor were any exceptions, general or special, taken to the charge, as a whole or in part. That appellant should now be heard to complain runs counter to the principles established by the Supreme Court of this Commonwealth and followed by this court.
In the case of Draude Donnelly, Inc. v. Wolstenholme Son,Inc.,
In the instant case, the part of the charge objected to related to the liability of defendant, Mrs. Harakal, on the basis of her ownership of the property. If there was any error in the charge, it was not only harmless, but even of affirmative advantage to defendant. It instructed the jury to find this defendant not liable "if she had no title in 1927 and 1928 (when the material was furnished by plaintiff) . . . . . . being a married woman she would not be responsible for the obligations of her husband . . . . . . .", when the jury, disregarding the question of ownership entirely, could have found, and did find, defendant liable together with her husband on a joint contractual relationship with plaintiff, arising out of a joint request for the material furnished: DuBois Lumber Coal Co. v. Strouse,
Assignments of error are overruled and judgment is affirmed. *190