Appeal, No. 91, Jan. T., 1951, from judgment of Court of Common Pleas of Union County, Sept. T., 1948, No. 3, in case of Murray W. Rohland v. Nicholas Nagy et ux. Judgment affirmed.
Edmund R. Finegan, with him Merrill W. Linn and Saul, Ewing, Remick & Saul, for appellant.
W. Roger Fetter, with him William L. Showers, for appellees.
Before Drew, C.j. Stern, Stearne, Lander and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Plaintiff, a building contractor in Lewisburg, Pa., sought to recover on a mechanics' lien the balance which
he claimed to be due him from defendants for building their house. He appeals from a verdict of the jury for defendants, complaining of the inadequacy of the charge.
The basic dispute between the parties concerns the nature and terms of an oral contract for construction of defendants' dwelling. Plaintiff testified that, following his usual practice, he agreed to supply the materials and labor for which defendants agreed to pay plaintiff's cost plus ten percent. Defendants insist that they promised only to pay plaintiff a flat price of $13,000. Defendants made five monthly payments as the work progressed, but testified that these were payments on account of the total contract price and not in response to plaintiff's bills for cost plus ten percent. After defendants had advanced $11,500, plaintiff presented a bill for an additional $6,671,09, which defendants refused to pay because their total payments would then have exceeded what they allege was the agreed contract price. When plaintiff refused to continue with the work until payment was made, defendants hired other contractors to complete their house at an additional cost to them of $3,334.92.
Plaintiff thereupon filed his mechanics' lien and issued a writ of scire facias, claiming the $6,671.09 balance. The Defendants answered, admitting an unpaid balance of $1,500 on a $13,000 contract, but counterclaiming for the $3,334.92 which they had paid to others to complete the house. The jury returned a verdict for defendants but awarded no money damages. This appeal questions only the adequacy of the instructions to the jury.
Plaintiff took but one specific exception. He complained of the refusal of the trial judge to charge that a defendant cannot recover a personal judgment on a ...