Appeal, No. 179, April T., 1956, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1951, No. 1736, in case of Wilkins M. Neville et ux. v. Bart J. Scott. Judgment affirmed; reargument refused January 14, 1957.
Thomas H. Cauley, with him Cauley & Birsic, for appellant.
Samuel Avins, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.
[ 182 Pa. Super. Page 450]
On November 17, 1950, Wilkins M. and Frances M. Neville, husband and wife, instituted an action in assumpsit against Bart J. Scott to recover damages for breach of contract. The jury found for the plaintiffs in the sum of $2,761.00. Defendant filed motions for judgment n.o.v. and for a new trial. The court en banc overruled both motions, but conditioned its refusal of a new trial upon the filing of a stipulation by plaintiffs remitting $761.00 of the verdict. Judgment was accordingly entered in the sum of $2,000.00, and this appeal by defendant followed.
On October 18, 1948, Scott entered into a written agreement with the Nevilles by virtue of which he was to build a dwelling on their lot located on National Street in the City of Pittsburgh. This agreement consisted of a proposal to which were attached eight pages of plans and also a four-page Federal Housing Administration form entitled "Description of Materials". The price fixed in the proposal was $14,750.00 to be paid as follows: $3,000.00 down, namely, $1,000.00 cash and $2,000.00 value of the lot, $1,000.00 in thirty days, and the balance of $10,750.00 "upon delivery of deed". Relying on Scott's representation that he could not negotiate an FHA loan unless he took over the lot, the Nevilles executed a conveyance to Scott. On January 31, 1949, Scott and his wife entered into an agreement to reconvey the lot to the Nevilles "upon which lot there is being erected and to be completed a one-story brick veneer dwelling". The price designated was $14,750.00
[ 182 Pa. Super. Page 451]
to be paid as follows: $4,000.00 down, receipt whereof was acknowledged, and the balance in cash upon delivery of deed. This second agreement provided that the lot would be subjected to an FHA insured mortgage from Housing Mortgage Corporation, and that the house should be considered completed when it received final FHA construction approval. It also contained an integration clause. On April 26, 1949, there was a settlement with the Housing Mortgage Corporation at which time Scott and his wife executed the reconveyance.
The complaint pleaded the first agreement and alleged a large number of defects in the construction of the dwelling. The answer pleaded the second agreement and averred that it "comprises an integral part of their contract". By way of new matter it was averred that the house had been approved by the FHA and accepted by the plaintiffs. In reply to the new matter plaintiffs admitted that the house had been physically completed, but averred that it had not been constructed in accordance with the contract and denied that they had accepted the house as satisfactory. There was testimony that, at the time of the reconveyance, the plaintiffs complained about the defects, and that Scott promised to remedy them. Scott did not take the stand and offered no evidence.
Appellant first contends that he was "entitled to a compulsory non-suit and/or binding instructions". He argues that, since appellees did not repudiate the agreement of January 31, 1949, and since the court below held that it was valid, the evidence concerning the contract of October 18, 1948, was improperly admitted; and that, without this evidence, appellees failed to make out ...