Appeal, No. 211, March T., 1950, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1948, No. 328, in case of H. Goldstein v. Milton H. Aronson. Judgment affirmed.
Joseph M. McClure, for appellant.
Abraham Pervin, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
H. Goldstein, appellee, instituted this action to recover a balance due for labor and materials furnished by him in the performance of a written contract entered into on April 22, 1946 with Milton H. Aronson, appellant, for the interior alteration of the latter's property in the City of Pittsburgh. Appellant filed an answer denying that any balance was due appellee and setting up a counter-claim. Appellee filed a reply disputing the counter-claim. A jury resolved the issues against appellant and returned a verdict in favor of appellee. This appeal is from the lower court's dismissal of appellant's motion for new trial and the entry of judgment.
The only question involved is whether the trial judge committed reversible error in his charge to the jury. Included, inter alia, in appellant's counter-claim was the loss of the rental of three apartments, into which the property was to be converted under the alterations called for by the contract, for a period of five months due to appellee's delay in the completion of the work. At the time of the trial the court and counsel for
both parties were of the impression that a zoning ordinance of the City of Pittsburgh prohibited a conversion of the premises into more than two apartments. The portion of the court's charge complained of by appellant is as follows: "I have given you the measure of the plaintiff's recovery if the plaintiff is entitled to recover. If, and only if, there was an unreasonable delay caused by the plaintiff, and not caused by somebody else, in completing this work so that the defendant lost rentals, then she would be entitled to recover, not the lost rentals of three apartments, but she would be entitled to the lost rentals of only two of the apartments because she had no business putting three apartments in there in the first place. It is against the law and she would not be entitled to recover for something she had no legal right to do; that is, making the third apartment. The evidence as to that is that the two legal apartments rented for $300 a month. The whole building rented for $400 a month but you must take the lower figure because that would be all she would be entitled to recover. Of course, she is not entitled to recover even that unless there was an unreasonable delay caused by the plaintiff."
At the conclusion of the charge the court inquired whether counsel had any requests with respect thereto. Counsel for appellant asked that a calculation showing the rental of the premises to be $300 a month be sent out with the jury. The court acquiesced but counsel then withdrew his request, saying, "They can remember that. I will just forget it." This calculation was based on the rental receivable if the premises were divided into two apartments only, and counsel interposed no objection to the action of the court in so limiting recovery by appellant in this regard nor the manner in which this issue was presented to the jury. Only a general exception was taken to the charge of the court.
It developed, as appears from the opinion of the court below, that unknown to the trial judge and apparently to counsel, the alteration of the premises was undertaken when emergency housing regulations of the local government permitted a larger than two-family use. The instruction of the court was, therefore, erroneous but it affected only the measure of damages. ...