Appeal, No. 281, Jan. T., 1955, from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1952, No. 2104, in case of Peter S. Mozino v. Francis A. Canuso, Jr. et al. Order affirmed.
Edmund B. Spaeth, Jr., with him MacCoy, Evans & Lewis, for appellant.
W. Bradley Ward, for appellees.
Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff sued in assumpsit to recover damages for the defendant partnership's alleged breach of an oral contract whereby the partnership was permitted to dig and remove fill from land of the plaintiff at so much per cubic yard with the further understanding and agreement that any rock encountered in the operation would be removed by the defendants and that the digging would be done in such a manner that, when completed, the surface of the ground would be left in a smooth and even grade. The partnership consisted of Francis A. Canuso and Francis A. Canuso, Jr., trading and doing business as Francis A. Canuso and Son. The defendants paid the plaintiff at the contract price per yard for the earth actually removed. The plaintiff instituted the present action to recover damages
due to the defendants' failure, after the removal of the fill, to restore the property to the condition required by the parties' agreement. The defendants answered, denying the property damage claimed by the plaintiff, and set up a counterclaim for materials which the firm had sold the plaintiff.
After issue had been joined, Francis A. Canuso, Sr., died. The plaintiff, with leave of court, subsequently amended his complaint so as to show the action as being against "Francis A. Canuso, Jr., Only, Surviving Partner of Francis A. Canuso and Francis A. Canuso, Jr., Late Trading as Francis A. Canuso and Son, Francis A. Canuso having died" and to include an averment that "... this action is brought against Francis A. Canuso, Jr., only, surviving partner of Francis A. Canuso and Son, and [that] plaintiff disclaims any claim against Francis A. Canuso or his estate."
At trial, the plaintiff offered himself as a witness. The defendant objected to his testifying on the ground that he was an incompetent witness under Section 5(e) of the Act of May 23, 1887, P.L. 158, 28 P.S. § 322, Francis A. Canuso having died. The objection was overruled and the plaintiff was permitted to testify generally with respect to the alleged oral contract, the defendant's breach of it and the damages flowing therefrom. The learned trial judge was then of the opinion that, by virtue of the plaintiff's amendment, "... the partnership is clearly out, so far as liability goes here and the remaining defendant is the only one who is in under that caption." The jury returned a verdict for the plaintiff of $7,500, less the [defendant's] bill of $713.52, making $6,786.48 net" for which latter amount a verdict for the plaintiff was entered of record. The defendant filed motions for judgment n.o.v. and for a new trial. The court en banc denied the motion
for judgment n.o.v. but awarded the defendant a new trial. Only the ...