the plaintiff and advanced by the defendant in the amount of $6,354.85; also, the balance due the plaintiff in the amount of $539.88, being the amount of said check or voucher, and specifying that this was the first and final estimate. On the said check or voucher the following appears: "Received in full payment of account as stated within", with the admitted endorsement or signature of Stoy Sorber, the payee in said check.
8. Plaintiff accepted the final payment check from defendant in the sum of $539.88 by endorsing the same and receiving the money therein called for, on or about the 6th day of September, 1940. Plaintiff at no time made any objection to any item included in said final estimate until March or April of 1941, when a claim was made by plaintiff's attorney for payment of the service charge of $185.02. Plaintiff made no objection until July of 1941 that he had furnished more crushed stone than was shown on the first and final estimate.
9. Plaintiff and defendant, at the time of making the written contract sued upon by plaintiff, did not orally agree that the lineal foot of tunnel, as referred to in the said contract, meant lineal foot of 9 inches in depth or thickness compacted in place. It was not intended by the parties that the alleged oral agreement was intended to be incorporated in the written contract; neither was said oral agreement omitted from the written agreement by accident or mistake. and plaintiff did not enter into said written contract relying upon the alleged oral agreement aforesaid.
10. There is no evidence from which the Court can make a finding as to the actual amount of stone furnished by the plaintiff to the defendant.
Conclusions of Law.
I. Plaintiff has failed to establish the alleged oral contract made at or before the written contract sued upon.
II. Plaintiff has been paid the full amount due him under the written contract sued upon and the oral contract made in July, 1940.
III. Judgment should be entered for the defendant, with costs.
Plaintiff in this action seeks to recover a balance alleged to be due him for crushed stone furnished by him to the defendant. His right to relief is based on an alleged oral contract made at or before the time of the written contract sued upon, dated May 16, 1940, whereby he was to be paid upon a different basis than that set forth in the writtencontract. The burden was upon the plaintiff to prove the alleged oral contract, that it was omitted from the written contract by accident or mistake, and that he would not have executed the written contract but for such accident or mistake. He failed to meet the burden placed upon him.
Plaintiff also claims that he has a right to recover for a 3 per cent. overhead charge deducted by the defendant, for the reason that such deduction is not provided for in the written contract. However, it appears from the evidence, and the Court has found as a fact, that plaintiff and defendant entered into an oral agreement in July, 1940, by which plaintiff was to be paid on a basis different than that specified in the contract for stone compacted in place; and also, that defendant was entitled to deduct a 3 per cent. overhead charge. It follows, therefore, under this finding, that plaintiff is not entitled to recover the amount of the overhead charge deducted. See Giles v. Vockel et al., 311 Pa. 347, 166 A. 849.
Under the foregoing findings of fact and conclusions of law, judgment should be entered for the defendant, with costs.
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