28 A.2d 352 | Pa. Super. Ct. | 1942
Argued April 29, 1942. Plaintiff bought a heating system, consisting of a furnace, a humidifier and an air conditioning unit, from the defendant. By the terms of the contract defendant agreed to supply the equipment and to install it in plaintiff's house. There were no defects in design or materials and the various units of the system complied with standard engineering practices. The system would have operated in harmony if it had been properly installed. The proofs indicate that defendant was negligent in this respect. The humidifier pan, intended to be level, was set up in a tilted position with the water level at the lower end below the overflow pipe. The result was a constant dripping of water to the hot interior of the furnace; with the pan in this position the automatic control of the water supply could not operate. As a consequence, excess steam and moisture were discharged into the house, which caused a buckling of the wood floors, cracking of the plaster and breaking of the bond, loosening of the wallpaper, and warping of the woodwork. The defective installation was concealed by the outer shell of the furnace and for that reason was not observed by plaintiff. When she noted that the unit was not operating properly she notified defendant but nothing was done.
The agreement with defendant implied proper installation and the damages to plaintiff's house were the proximate consequence of defendant's breach of its *345 contract. Plaintiff was seriously damaged. Several building contractors testified as to the cost of restoring the house to its former condition. Their estimates ranged from $975 to $1,225. The jury found for plaintiff in the sum of $700.
This action was in assumpsit; two questions are raised in this appeal: (1) Whether plaintiff is limited to nominal damages because of the form of her action and (2) whether defendant is entitled to a new trial on the ground, alleged, that the verdict was a compromise.
The fact that the action was in assumpsit, in itself, does not bar this plaintiff from recovering substantial damages even if the action should have been in trespass. Much of the distinction between forms of action has lost its former significance; the court looks to substance; Lindsley v. First Nat. Bank,
The action here, however, was properly brought in *346
assumpsit though sounding in tort. The gist of the action was defendant's negligence and though it might have been brought in trespass, the real issue was whether defendant was guilty of neglect in the performance of its contract. Cowan v. Nagel,
The charge of the court was not inconsistent with these principles although the measure of damages was not stated in the language of the rule. No further requests for charge were made by defendant's counsel although invited by the trial judge; the failure to request more definite instructions must be considered a waiver of any objection that might have been made, especially since the defendant was not harmed. Inadequacy in the charge is not assigned as error; moreover we find no basic or fundamental error, the single question which could have been raised by defendant's general exception to the charge. Mastel v. Walker,
As to the second question, defendant contends that since the verdict was $275 less than the lowest estimate, in evidence, of the cost of restoring the property, the verdict necessarily was a compromise and a new trial must be granted on that ground. The complaint of inadequacy of a verdict is novel coming from a defendant who must pay it. We find no merit in it. In any action where recovery is allowed on a breach of contract the jury are bound to award damages which will fully compensate the injured party but the amount in cases such as this is entirely for them. The testimony as to damages, in reality, rests upon little more than opinion evidence as to what it would cost to restore the house to its former condition; the weight of it was for the jury. The opinions of plaintiff's experts were sufficient to take the question of the cause of the damage, to the jury but it is not essential that the jury's verdict coincide with any of them as to the exact amount of plaintiff's loss. The opinions of experts are not facts and the jury is free to exercise its judgment. Ray, touse v. Philadelphia,
The verdict is supported by the evidence; it is responsive to the issue and must stand since it reflects only such damages as defendant must have foreseen as the direct result of its negligent breach of the contract.
Judgment affirmed.