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January 17, 1956


Appeal, No. 182, April T., 1955, from judgment of Court of Common Pleas of Allegheny County, July T., 1952, No. 2711, in case of Fred Muchow v. Gus J. Schaffner, Jr. et ux. Judgment affirmed.


Max U. Applebaum, for appellants.

Patrick J. Corr, with him Donald R. Tomlinson, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 180 Pa. Super. Page 415]


This is an action of scire facias upon a mechanic's lien brought by Fred Muchow, a contractor, against Gus J. Schaffner, Jr., and Dorothy R. Schaffner, his wife, to recover for labor and materials actually expended in the construction of a building on the property of the defendants. After trial in the Court of Common Pleas of Allegheny County the jury returned a verdict for the plaintiff for the full amount of his claim, including interest, totaling $2,073.28. During the trial, at the conclusion of the plaintiff's case, the defendants' motion for compulsory non-suit was refused. Defendants' motions for judgment n.o.v. and for a new trial were overruled by the court below and this appeal followed.

We will not consider the contention of defendants that the lower court committed error in refusing the motion for compulsory non-suit. It has long been settled law in this Commonwealth that no appeal lies from the refusal to grant a compulsory non-suit. Carroll v. Hannan, 289 Pa. 65, 137 A. 127; Shapiro v. Philadelphia et al.,

[ 180 Pa. Super. Page 416306]

Pa. 216, 159 A. 29; Morgan v. Duquesne Boro., 29 Pa. Superior Ct. 100.

In reviewing the record we will consider the facts and the reasonable inferences therefrom in a light most favorable to the plaintiff as we are required to do: Harris v. DeFelice, 379 Pa. 469, 109 A.2d 174; Dauphin Deposit Trust Company v. Lumbermens Mutual Casualty Company, 171 Pa. Superior Ct. 86, 90 A.2d 349. Thus viewed, the following factual situation is presented. On January 9, 1950, the plaintiff and Gus J. Schaffner, Jr., one of the defendants, entered into a written agreement providing for the erection of a two-story concrete-block building by the plaintiff on the premises of the defendants. The agreement provided, inter alia, that plaintiff would, in the construction of the building, dig 3 feet for the footer, that all walls were to be 33 courses high above the footer and there were to be 6 pilasters of hard common brick 16 x 16 from footer to top beams. The building was to be approximately 30 feet long and 27 feet 8 inches wide with ceilings to be 10 feet. The agreement also provided "All extra work to be paid for at the rate of $1.50 per hr. plus cost of material." The price agreed upon for the job was $2,737.00. The plaintiff commenced work on the construction of the building and shortly after excavation was begun he concluded that the ground would not support the building with a footer only three feet deep and that it would be necessary to dig deeper to properly place the footer. Plaintiff testified he called this condition to the attention of the defendant, Gus J. Schaffner, Jr., and that the following conversation took place between him and Schaffner: "We went three feet and I called Gus and I said, 'Gus, we will have to go deeper for a footer. That ground won't hold the building.' He said, 'That's all right, go ahead.' I said, 'It will be extra work according

[ 180 Pa. Super. Page 417]

    to the contract.' He said, 'That's all right. Don't worry about extra work. We are going to have extra work all the way through on this building. Don't worry about it. I'll pay for it whatever it is. Forget the contract.' And I said, 'All right'. And we did that work." This testimony was corroborated by the testimony of one of the workmen. Plaintiff completed the erection of the building which, when finished, was materially different from the structure contemplated in the original written agreement. Plaintiff thereupon demanded payment on the basis of an oral contract on a time and material basis and when defendants refused payment he filed his claim in the total amount of $4,351.07 representing labor charges in the amount of $1,975.50 and charges for materials totaling $2,375.57. In his claim plaintiff made no allowances for payments received but during the trial he acknowledged that he had received certain payments and that some of the materials had been paid for by the defendants. The total of these payments was $2,724.97, leaving a balance due plaintiff, according to his contention, of $1,626.10 with interest from March 11, 1950. The defendants contend the total charges on the basis of the written ...

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