Appeal, No. 87, April T., 1954, from order of County Court of Allegheny County, 1951, No. 1397, in case of Mario G. Costanzo v. Alfonso Chianese et ux. Order affirmed
Joseph M. McClure, Pittsburgh, for appellants.
Francis A. Muracca, Pittsburgh, for appellee.
Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 177 Pa. Super. Page 414]
This appeal is from the order of the lower court dismissing defendants' motions for a new trial and judgment n.o.v. Plaintiff filed suit in assumpsit based on
[ 177 Pa. Super. Page 415]
an oral contract dated July 10, 1949, for labor and material furnished in construction of defendants' residence. Prior to the suit in assumpsit, plaintiff filed pleadings for mechanic's lien and issued a writ of scire facias. The mechanic's lien, however, due to formal defects, was stricken off. The case was tried on February 18, 1953. The testimony of the plaintiff revealed that he stopped work after ten days when it became apparent that the contractor was unable to pay; and that the owners persuaded him to continue the work promising to pay him the same rate as agreed to by the contractor. During the progress of the work defendants repeated the promise to pay him.
Defendants contend, however, that the testimony disclosed a primary contract with the contractor and performance thereunder, and only a collateral contract of surety or guaranty with defendants. The mechanic's lien and the sworn statement in the pleadings were offered in evidence to substantiate this contention. They denied entering into any direct contract or agreement to pay plaintiff for the labor and material, and stated that if any contract was entered into by him, it was a contract with Mr. Tedesco, the general contractor. The pleadings for the lien, defendants point out, show a direct oral contract with Mr. Tedesco whereas they are designated merely as owners. The amount of labor and material set out in both proceedings is identical. The contractor, Tedesco, called by the plaintiff, testified that defendants admitted hiring plaintiff to finish the work after the work was discontinued due to financial difficulties.
Motions for compulsory non-suit and binding instructions were made and refused. The jury returned a verdict in favor of plaintiff. Defendants now persist that a compulsory non-suit should have been granted on the theory that plaintiff's sworn statement in the
[ 177 Pa. Super. Page 416]
mechanic's lien as a subcontractor eliminated him as a contractor, and, as to them, eliminated ...