50 Pa. Super. 241 | Pa. Super. Ct. | 1912
Opinion by
There was a former appeal in this case, our decision upon which is reported in 43 Pa. Superior Ct. Ill, and the plaintiff having again recovered a judgment in the court below, we have this second appeal by the defendants.
The first contention of the defendants in the former appeal was that the oral contract upon which the plaintiff relied was within the statute of frauds and, for that reason, invalid. This court held that contention not to be well founded, for the reasons stated in the opinion then filed. The second ground upon which the defendants then relied for a reversal was founded upon the assertion that the testimony produced by the plaintiff to establish the verbal contract, alleged in his statement, was not clear and satisfactory. We said, in disposing of this question: “This question is raised by the fourth and twelfth specifications of error. We find in the record considerable competent testimony tending to support the plaintiff’s contention as to the alleged verbal contract, as well as to the damages alleged to have been sustained, and although we have reached the conclusion that the learned court erred in the admission of the testimony embraced in the sixth and seventh specifications of error yet we are not convinced that if the testimony embraced in the sixth and seventh specifications had been rejected, the court would have been justified in withdrawing the case from the jury. And, therefore, the fourth and twelfth specifications are dismissed.” All of the testimony to which Judge Morrison 'thus referred in his opinion was again presented at the trial which resulted in the judgment which defendants now seek to reverse, including the testimony of Mr. Mane-gold, to the effect that Herb, one of the defendants, had,
The appellants seek in the present appeal to raise for the first time the question that this action was prematurely brought. The action was brought on June 26, 1907, the plaintiff filed his statement on November 25 of the same year, and the defendants, on March 4, 1908, entered the plea of non assumpserunt. The question whether the action was prematurely brought was never raised until the second trial, on November 21, 1910, after a former trial upon the merits and an appeal to this court. The date of the agreement upon which plaintiff relied, its terms, and the date of the alleged breach were distinctly averred in the plaintiff’s statement, which also averred facts disclosing that the defendants had by leasing the foundry to another party, for a period of one year from March 15, 1907, put it out of their power to comply with their oral agreement with plaintiff. The defendants knew, therefore, when they filed their plea, precisely the cause of action which they were called upon to meet, yet they pleaded the general issue. If they had then filed a plea in abatement, the plaintiff might have discontinued this action and brought a new one, for there can be no question that he would then have been entitled to do so. Prematurity of suit is matter for plea in abatement: 1 Chitty’s Pleading, p. 469. This is a dilatory defense, in suspension only and not in bar of the action and should be presented
The remaining question is as to the measure of damages for the breach of the contract. The plaintiff asserted that he had been induced to purchase a house to be used as a residence upon the faith of the agreement of the defendants that they would tear down a foundry, to the presence of which he objected when inspecting the property. The defendants failed to discontinue the operation of the foundry within the time specified. The injury resulting from the breach of which plaintiff complained was the continued operation of the foundry, the dust, smoke and fumes from which caused the residence of plaintiff to be dirty, disagreeable and undesirable, and so causing it to be impaired in value. The general principle upon which the law awards damages is compensation for the loss suffered: Kunkel & Jordan v. Wherry, 189 Pa. 198. When the injury is permanent, the measure of the damages is the difference in market value, resulting from the injury, or the cost of repairing the injury, whichever is the lower amount: Rabe v. Shoenberger Coal Co., 213 Pa. 252. When the case was here before, the operation of the foundry which caused the injury, was to be continued, so far as the evidence then indicated. The thing which caused the injury was entirely beyond the control of the plaintiff, the defendants had put it out of their power to abate the injury for a limited period, and whether they ever would abate it was a matter which a jury could not determine. This being the case we held that the measure of damages was the depreciation in the market value of the property of the plaintiff resulting from the operation
The judgment is reversed with anew venire.