96 Pa. Super. 57 | Pa. Super. Ct. | 1928
Argued December 11, 1928. The plaintiffs brought an action of assumpsit for the loss of profits which they claimed they sustained by reason of defendant's refusal to permit them to carry out a contract for the erection of an apartment house. The written agreement was attached to plaintiff's statement. The affidavit of defense claims nonperformance by the plaintiffs; denies that the defendant prevented them from completing the work and *60 states that they suffered no loss. The trial resulted in a verdict for the plaintiffs.
The defendant attempted to put in evidence the written contract between himself and one La Boube relating to the financing of the building. This agreement was executed at the same time as the contract with the plaintiffs and the defendant sought to show that the execution of the one induced him to make the other. The trial judge properly excluded the agreement relying upon the 16th section of the Practice Act of May 14, 1915, P.L. 485, which provides that, "Neither party shall be permitted at the trial to make any defense which is not set forth in the affidavit of defense." Ruth-Hastings Glass Tube Co. v. Slattery,
Defendant further urged that the contract for the erection of the house contained the following clause: "It is understood and agreed that as an advance money agreement is being entered into between A.W. Wolson of Chester, Pennsylvania, and the parties hereto, that payments will be made weekly on account of the above schedule, etc.," and that this must be construed as a provision that if the money was not procured, the contract was not to be carried out. We do not so regard it. The reference to the other agreement seems to be introduced as affecting the method of payments, thus changing from lump sums to weekly payments, if the loan is obtained. The clause does not bear the interpretation placed upon it by the defendant.
The court instructed the jury that the measure of damage was the difference between the contract price and what it would have cost the plaintiffs to perform their contract. In Harlow v. The Borough of Beaver Falls,
The court allowed the plaintiffs to testify as to the bids which they had received, as forming part of the proof of the cost of the buildings. The lower court took the view that these oral and written bids which had been submitted to the plaintiffs should not have been received in evidence unless the contractors themselves were called as witnesses and the court reduced the verdict by a sum sufficient to fully cover such items so that the defendant was not harmed by the reception of such evidence. This he could easily do as the verdict was the same amount shown by the plaintiffs as being *62 the difference between the contract price and the cost of the proposed building and the objectionable items could easily be ascertained. The sum total of the items premised upon proof of bids received by the plaintiffs, but not proven by the people who furnished them, was thus deducted from the verdict. In view of what we are about to say, we need not decide whether this action of the court was proper, but it seems to have been a common sense method employed to avoid a retrial.
We do not share the view of the lower court that the cost of the building may not be proven by the amount which the plaintiffs would be required to pay for the various materials entering into the construction of the building and that offers made to the plaintiff would not be evidence of such cost. In Smith v. Kaufman,
All the assignments of error are overruled and the judgment is affirmed.