Walter v. Graham

80 Pa. Super. 518 | Pa. Super. Ct. | 1923

Opinion by

Gawthrop, J.,

This was an action of assumpsit to recover damages resulting from a breach of an oral contract, in which, as alleged by the plaintiff, the defendant undertook and agreed to wrap, pack and crate in an expert and proper manner certain household goods and furniture belonging to the plaintiff, and load them in a proper manner in a railway freight oar for shipment from Philadelphia to Brookline, Massachusetts. The affidavit of defense denied the agreement set up by the plaintiff, and averred that the defendant’s agreement was merely to wrap the goods in paper and load and brace them in the car. The plaintiff proved the agreement alleged by her and the breach thereof and damages in excess of the amount of the verdict. The errors assigned are, 1, the refusal to grant a new trial; 2, the refusal to enter judgment for the defendant non obstante veredicto. There is no merit in either complaint. The question was purely one of fact. The evidence was sufficient to sustain the verdict and there was no abuse of discretion in discharging the motion for a new trial. The argument for judgment non obstante veredicto is based on the contention that the plaintiff waived her claim against the defendant and estopped herself from asserting the same because she secured $70 from the railroad company on account of her damage. The obligations of the railroad and of the defendant in connection with the shipment of goods were separate and distinct, and the question of waiver or estoppel is not involved.

The learned trial judge was fully justified in dismissing both motions.

The assignments of error are overruled, and the judgment is affirmed.