Sacks & Piwosky, Philadelphia, for appellant.
James Dessen, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 170 Pa. Super. Page 235]
This is an appeal from the refusal of a new trial after judgment for the garnishees in an action of attachment sur judgment. The plaintiff secured a judgment in assumpsit against the defendant Quartucci and thereafter issued an attachment sur judgment against Albert J. Mellon et al., garnishees. The garnishees' answer, while admitting business transactions with the defendant, averred that they were in possession of no balance due to Quartucci, stating that Quartucci had improperly performed certain work for them and that the cost of having the work done by another contractor
[ 170 Pa. Super. Page 236]
exhausted 'in its entirety' any funds which would have been due Quartucci had his work been satisfactory.
The cause was heard by a judge sitting without a jury and after finding that the garnishees had a setoff to all but $5 of any amount due the defendant, the court entered judgment for the garnishee since the sum due was less than 'customary' garnishees' attorney's fees. Plaintiff's motion for a new trial was dismissed and this appeal was taken.
The evidence adduced at the trial may be summarized as follows: Albert J. Mellon, Sr., testified that he had engaged the defendant Quartucci to do some hauling for him and that the cost of the hauling was $656.60. He testified further that at or about the same time the defendant built a cesspool for him and that the agreed price for this work was $450 or thereabouts, that of the $1106.60 due the defendant upon the completion of both jobs only the sum of $650 was paid and that no further payment was made to defendant because the cesspool collapsed and had to be rebuilt by the garnishees at a cost of $451.
A disputed item in the list of expenditures for the cesspool was a power shovel rented by the garnishees from one Margerum. When asked what the rent for the shovel was, Mr. Mellon replied, 'I paid $168.00 to dig that well out'; and, later in his testimony, he stated that the sum of $168 was paid to Margerum for the use of the shovel. A check payable to Margerum and signed by Mellon in the amount of $168 was identified by the latter as the instrument by which the rental of the shovel was paid, and this check was admitted into evidence over the objection of the plaintiff.
The principal contention of the plaintiff is that the trial court erred 'in permitting secondary evidence' of the payment of rental for the power shovel without requiring a satisfactory reason for the ...