Allen N. Brunwasser, Pittsburgh, for appellant.
No book or appearance for appellee.
Before Rhodes, P. J., and Reno, Ross, Gunther and Wright, JJ.
[ 174 Pa. Super. Page 23]
This is a suit in assumpsit to recover damages for breach of contract and unjust enrichment. Plaintiff obtained a verdict of $1500 and defendant filed motions for a new trial and judgment n. o. v., which were refused and from which defendant has appealed.
Plaintiff bought an automobile in September, 1950 paying $964 down and the remainder to be paid in monthly installments under a bailment lease. Of the down money, $350 was borrowed from defendant, but later repaid and so does not enter into the calculation of damages. After paying two monthly installments of $111.24 each, plaintiff encountered financial trouble and requested defendant's help. According to plaintiff's testimony, which was accepted by the jury, defendant
[ 174 Pa. Super. Page 24]
took over the bailment lease on the understanding that plaintiff was to repay defendant for all moneys due by May, 1951. In March, 1951, plaintiff repaid the original $350; later the same month he paid defendant $400; in April he paid $293; and lastly he paid a regular monthly installment to defendant of $111.24. Plaintiff never received a reassignment of his rights to the car. The defendant eventually acquired title to the car and sold it. Plaintiff therefore asked a verdict in the amount of the sums expended by him which, disregarding the $350 borrowed and repaid, totaled about $1990. Defendant introduced a judgment note against plaintiff for $450, which was alleged to be unpaid and which the jury deducted from the $1990 in order to arrive at their verdict of $1500.
Defendant assigns a multitude of errors, none of which is meritorious. First, he contends that the verdict was not based on the natural result of a breach of contract, since some $1100 was paid by plaintiff prior to the assumption of the lease by defendant, leaving only some $800 paid to defendant under their agreement. The error in this allegation is that it ignores the fact that defendant was unjustly enriched by the $1100 already paid, since he kept the automobile and acquired title thereto. The contract called for reassignment to plaintiff and the failure to do so was a breach the natural result of which was to leave defendant in possession of a car into which plaintiff had put $1100 prior to the agreement. The verdict is thus sustainable on the grounds of either breach of contract or restitution.
Defendant next complains of the charge of the court below on the matter of damages. Examination thereof, however, reveals no error. The court charged the jury that if they found that plaintiff made the payments he testified to, they would be justified in finding a verdict
[ 174 Pa. Super. Page 25]
for the total of those payments, about $1990, less the $450 if they believed plaintiff received that money and had not repaid it. That is certainly a fair statement of the damages allowable. We see no other measure that could have been given, since the damages here were liquidated and so ascertainable in definite amount. Pearce v. Bond, 71 Pa. Super. 501, cited by defendant is not in point because there the damages were unliquidated and so ...