230 Pa. 153 | Pa. | 1911
Opinion by
This is peculiarly a case of controverted facts. There is a dispute as to whether any contract was entered into
We do not agree with the second contention of appellant, which is, that upon the whole record judgment non obstante veredicto should be entered for defendant. There was ample evidence to sustain a recovery in some amount and the only question to be determined is as to the cost of the tomb which was the basis fixed by the contract to ascertain the amount of the commission. Ap-pellee claims upon the basis of a $70,000 tomb, while appellant contends that if he is required to pay any commission it must be computed upon a total cost of $40,000.
Judgment reversed and a venire facias de novo awarded unless appellee within ten days after this record is remitted shall file a stipulation agreeing to remit the item of $200, and the commission on the estimated cost in excess of $40,000 together with such interest as may have been added on account of these items in the verdict, in which event the court below is directed to enter final judgment for the amount so ascertained.