June 11, 1958
Appeal, No. 125, Oct. T., 1958, from order of Municipal Court of Philadelphia County, July T., 1955, No. 33, in case of Toney McGill, individually and trading as Toney McGill & Son, v. Geneva Wright, also known as Geneva Redd, also known as Geneva Nedd, and David Wright. Order reversed.
Henry N. Fineman, with him Morris Passon, for appellant.
Leon S. Rosenthal, for appellees.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 187 Pa. Super. Page 27]
OPINION BY ERVIN, J.
This is an appeal from an order of the court below refusing plaintiff's motion for a new trial. Plaintiff sued in assumpsit to collect a balance of $400.00 which he alleged to be due under a written contract providing for the removal of an old shed and the erection of
[ 187 Pa. Super. Page 28]
a new one. The total contract price was $1,240.00 and the plaintiff admitted receipt of the first two installments totaling $840.00. The evidence clearly reveals that there was a substantial performance of the contract by the plaintiff. The defendants testified that plaintiff built a room 11 feet by 10 feet 8 inches whereas the written agreement called for a room 12 feet by 12 feet; that the agreement specified the removal of an old arch in the first floor living room and the installation of a new one, whereas plaintiff "only moved the old arch over"; that the plastering was rough instead of smooth and that the work was not done promptly.
The court below found for the defendants and later dismissed plaintiff's motion for a new trial. A new trial must be granted because the defendants presented no evidence at all to show the cost of correcting the above mentioned defects.
Order reversed and a new trial is granted.
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