Appeal, No. 110, April T., 1956, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1953, No. 1855, in case of Mildred H. Weaverling v. Harry E. Smith et ux. Judgment affirmed.
E. F. Kelly, with him James A. Wright, for appellants.
Harry J. Schmitt, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.
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Mildred H. Weaverling brought suit in assumpsit against Harry E. Smith and Cora E. Smith, his wife, to
[ 181 Pa. Super. Page 155]
recover the sum of $1134.00 upon a cause of actions arising from a factual situation which will be hereinafter detailed. Preliminary objections were interposed and overruled. At the conclusion of the trial the jury returned a verdict for the plaintiff. A motion by the defendants for judgment n.o.v. was refused by the court en banc, and judgment was entered on the verdict. This appeal followed.
Appellants sold to appellee and her husband, since deceased, a house and lot situated on Seaton Avenue in the City of Pittsburgh. In the agreement of sale was a provision reading as follows: "The Consideration as set forth includes the paving of Seaton Avenue at the cost of the parties of the first part". Appellants had laid out a plan of lots, with unpaved streets, on which lots they erected dwellings. As each dwelling was sold, the sales agreement included a provision similar to that just quoted. The streets entirely within the plan were paved by private contractors engaged by appellants, but Seaton Avenue, which extended beyond the plan, was paved by the City. The paving of all of the streets was in accordance with city plans over which appellants had no control. In front of the Weaverling property Seaton Avenue was banked, and depressed in elevation on the Weaverling side, thus causing a lowering of grade at the property line to a depth of approximately three feet. The City thereafter petitioned for the appointment of viewers to assess benefits against the owners of the abutting properties. Benefits were assessed against 58 properties sold by appellants to individual owners, and appellants intervened in each case and eventually settled the assessments with the City. In the case of the Weaverling property, there was no intervention, and the report of the viewers was confirmed absolutely. The theory of appellee is that her damages were fixed by the viewers at $1200.00, but that the viewers
[ 181 Pa. Super. Page 156]
then deducted benefits in the amount of $1134.00, which latter amount she demands from appellants under their agreement of sale.
The report of the viewers was introduced at the trial. Under the heading "Damages less Benefits Assessed", the amount of $66.00 appears opposite the name of appellee. Under the heading "Assessment of Properties Peculiarily Benefited to Pay Total Damages, Costs and Expenses", appellee's name again appears followed by the word "Nothing". H.S. Douglass, a member of the Board of Viewers which tried the Seaton Avenue cases, was called as a witness for appellee. Over objection, he testified that the $66.00 damages awarded appellee was arrived at by awarding $1200.00 for property damage and deducting therefrom $1134.00 for benefit assessment. He admitted that this information was not set forth in the report, but testified that it represented the viewers' calculation. Appellee admitted that she did not pay any money for the construction of the street. She did, however, testify as to the damage caused to her property by the change of grade, and the nature of the work necessitated in order to accommodate the lot to the new grade line. At the conclusion of the testimony appellants' counsel moved for binding instructions, which motion was refused. The trial judge instructed the jurors that, if they believed the testimony of Douglass, they should return a verdict for appellee. It should perhaps be here noted that ...