Bertram U. Weinberg, Maurice G. Weinberg, Philadelphia, for appellant.
David Kanner, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 118]
This is an appeal from an order of the court below granting a new trial on defendants' motion following a jury verdict for plaintiff. Plaintiff would have us reverse the order and direct the entry of judgment on the verdict on the ground that the court below committed a palpable abuse of discretion.
This was an action in assumpsit by plaintiff to recover for work performed and material furnished to defendants. Plaintiff, a building contractor, and defendants entered into a written contract which provided for the renovation and alteration by plaintiff of a building owned by defendants. The contract price was $6,000; plaintiff received $4,700 on account during the progress of the work. Plaintiff alleged a balance of $1,300 due him under the contract, and $862.15 for
[ 171 Pa. Super. Page 119]
extras verbally requested by defendants, or a total of $2,162.15. Defendants in their answer averred that plaintiff had not completed the work in accordance with the contract, that much of the work was done in a defective manner, and that a reasonable price for the extra work performed was $50. Defendants also filed a counterclaim in the amount of $2,258, claiming $143 for incomplete work, $855 for work defectively performed, and $1,260 for loss of rentals of two apartments in the building as a result of plaintiff's failure to complete the work by July 1, 1949. During the trial, which lasted two days, plaintiff abandoned his claim for extra work. The jury returned a verdict for plaintiff in the amount of $954.66, and found for plaintiff on defendants' counterclaim.
The court below in its opinion granting defendants' motion for a new trial said:
'The record discloses that all the evidence except the written contract was oral and that much of it was presented in a manner which tended to confuse the jury, and the trial was thus unnecessarily strung out by useless and repetitious examination.
'Therefore, the court en banc unanimously concluded that in the interest of justice a new trial was necessitated.'
The question presented on this appeal is whether it was a palpable abuse of discretion for the court below to grant a ...