30 A.2d 221 | Pa. Super. Ct. | 1942
Argued October 6, 1942. Trial of issue after opening of judgment entered by confession. Before BONNIWELL, J., without a jury. *255
Finding and judgment for plaintiff. Defendant appealed. In this action upon a contractor's performance bond, an appeal has been taken by Alfonso De Vincent, defendant-obligor, from the action of the court below in refusing his motions for judgment n.o.v. and a new trial and entering judgment in the sum of $735 upon a finding in favor of Edward G. Holloway, Inc., the use plaintiff, for whom the work in question was to have been performed.
The material facts may be thus summarized: On October 11, 1940, the defendant, a bricklaying contractor, entered into a written contract with the use plaintiff in which he agreed to perform all the bricklaying required in connection with the contemplated construction of "thirty-two two-story dwellings with garages." On the same date the defendant executed the bond, upon which this suit is based, in the sum of $10,400, conditioned upon the faithful performance of his contract. The obligee therein was the legal plaintiff, Myer Feinstein Co., which had agreed to assist the use plaintiff in securing the necessary funds to finance its building operation and gave the defendant its written guarantee covering payment of the sum to become due from the building corporation in connection with the brick work upon the first unit of twenty houses.
Pursuant to a warrant of attorney authorizing confession of judgment contained in the bond, the use plaintiff had judgment entered thereon and subsequently marked to its use as third party beneficiary. Damages *256 were assessed at $735, upon the filing of an averment of default, with a copy of the contract attached, alleging defendant had failed to perform any of the work agreed upon, as a result of which the use plaintiff had been required to expend the additional sum of $350 for the brick work in the twenty house unit and would be compelled to pay $385 in excess of the contract price on the balance of the houses "which said sums were just, reasonable and the market prices of same at the time in question."
The defendant thereafter filed a petition alleging that the contract had been cancelled by mutual consent after the use plaintiff refused to secure a guarantee from Myer Feinstein Co. covering payment for the brick work on all thirty-two houses, as demanded by defendant. Attached to the petition as an exhibit was a copy of a letter dated November 7, 1940, addressed to defendant by Myer Feinstein Co., asserting its guarantee was void since it had received from Mr. Holloway, president of the use plaintiff, a release signed by defendant "releasing Mr. Holloway" from the contract. (Italics supplied) The court granted a rule to show cause why the judgment should not be opened and a defense be permitted. After an answer was filed and argument had the rule was made absolute.
The case was then transferred to the Municipal Court for trial where it was heard by BONNIWELL, J., without a jury, who, at the suggestion of defendant's counsel, unopposed by the attorney for the use plaintiff, permitted the averment of default to be considered as the statement of claim and the petition to open the judgment as the affidavit of defense.
The real question in this case was whether the contract had been cancelled by mutual agreement. The court below held it was not and found upon sufficient competent evidence in favor of the use plaintiff in the sum of $735. *257
Counsel for defendant insists that the use plaintiff's proofs were fatally defective on the question of damages in that a bald statement as to the amount expended without showing that it was the fair, reasonable and market cost of completing the work, furnished an insufficient basis for the verdict. It is true that the use-plaintiff's testimony contained nothing directly establishing the reasonableness of the price paid Bennis McGough who actually performed the work in question. Edward G. Holloway, president of the use plaintiff, testified without objection that his corporation had to pay to have the work done $1315 in excess of the contract price agreed to in writing by the appellant.
Counsel for defendant did not attempt by cross-examination of the witness or otherwise to impeach the reasonableness of these figures. Under our decision in Huskey Mfg. Co. v. Friel-McLeisterCo.,
But the verdict was not in the sum of $1315 and therefore was obviously not based upon the use plaintiff's so-called "bald" statement as to actual cost; it was in the amount of $735. The latter sum was alleged to be the "just, reasonable and market" price in the averment of default which was considered by the court, without objection, as the statement of claim; the averment of default was offered and received in evidence and the question of damages included therein was in no way denied in the petition to open the judgment (considered as the affidavit of defense) or elsewhere. Throughout the case defendant was content to defend on the basis of a cancellation of the contract, making no criticism as to the propriety of the damages claimed which he must have known would be the minimum amount of the verdict should the contract be found enforceable. These admitted averments therefore constitute a proper basis for the finding entered. It is not our province to disturb it. Our Supreme Court in MassachusettsBonding Ins. Co. v. Johnston Harder, Inc.,
Appellant's assignments of error are severally overruled.
Judgment affirmed.