Rose v. Scott

75 Pa. Super. 196 | Pa. Super. Ct. | 1920

Opinion by

Linn, J.,

In his statement of claim plaintiff alleged that he had furnished material and labor on a house belonging to defendant pursuant to a written contract; that he had been paid therefor; that he had also furnished extras — - material and labor — at defendant’s request for which defendant refused to pay and for which he sought recovery.

In his affidavit of defense, defendant denied that he had ordered the extras and that any were furnished; he averred that plaintiff had been paid all that was due to him.

The issue so made, therefore, was whether defendant expressly or impliedly had ordered extras and whether, if so, they had been furnished, and what they were reasonably worth. The verdict settles this issue in favor of plaintiff. Defendant’s appeal contains three assignments of error.

1. The first assignment complains of the admission of certain evidence. While the assignment is not in accordance with our rules requiring it to contain the evidence in dispute, we observe that if there was any foundation for the objection, it was removed by appellant himself. He objected “to any testimony as to what was done either inside or outside of the contract, unless it is produced or accounted for.” Subsequently, he offered the contract in evidence.

2. The second assignment is to the refusal to enter a nonsuit. No assignment lies to that action: Spencer v. Conrad, 44 Pa. Superior Ct. 489.

3. The remaining assignment complains of the refusal to enter judgment non obstante veredicto. Plaintiff presented evidence in detail stating the extras ordered and furnished and the reasonable market value thereof. Defendant testified that he ordered a part, denied ordering the rest and explained why he should not be held liable therefor. He seeks to escape liability by reference to a provision in the contract stating that “the plans and specifications are not to be altered in any particular unless by the agreement in writing signed by both of the parties,” contending that the evidence of waiver of that provision was insufficient. To support his contention, he cites opinions discussing the rule relating to the variation of writings by oral evidence. They are inapplicable. There was no attempt to vary or add to the written contract something alleged to have been omitted therefrom. The authorities applicable to the issue tried are Cunningham v. Church, 159 Pa. 620; Shultz v. Seibel, 209 Pa. 27, and Cramp v. Realty Corporation, 268 Pa. 14. Two witnesses or one witness and corroborating circumstances are not required to prove the extras.

The evidence was put to the jury by the learned president judge of the common pleas in a charge so full and clear that no objection was made to it by appellant. It is therefore obvious that on such a record presenting disputed questions of fact to be determined, the court could not enter judgment non obstante veredicto.

The judgment is affirmed.