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SCHLEIN v. GROSS ET UX. (06/11/58)

June 11, 1958

SCHLEIN
v.
GROSS ET UX., APPELLANTS.



Appeal, No. 132, Oct. T., 1958, from judgment of Court of Common Pleas of Montgomery County, April T., 1953, No. 306, in case of Benjamin V. Schlein et al. v. Jerome Gross et ux. Judgment affirmed.

COUNSEL

Roland Fleer, for appellants.

Cassin W. Craig, with him Wisler, Pearlstine & Talone, for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Watkins

[ 186 Pa. Super. Page 620]

OPINION BY WATKINS, J.

This is an appeal from an order of the Court of Common Pleas of Montgomery County dismissing exceptions, and directing the entry of judgment in an action of assumpsit in favor of Benjamin V. Schlein and Martin B. Schwartz, trading as Master Masons Construction Company, the appellees, and against Jerome Gross and Sylvia K. Gross, husband and wife, the appellants, in the sum of $4,343.97.

This is an action in assumpsit for a balance alleged to be due on a building contract between the parties for the construction of a dwelling house in Merion, Montgomery County, Pennsylvania. The contract price was $38,500 with one extra of $15. There is no conflict between the parties concerning the contract price. The plaintiffs appellees allege as a basis of their suit a balance due on the construction contract of $5,080. They arrive at this balance as the difference between the admitted contract price and what they claim the appellants paid and are entitled to in credits.

The appellants deny that the credits allowed are accurate and that they are entitled to certain additional items. They further counterclaim for damages for breach of contract with respect to the plastering of the interior walls and ceilings of the house and in mislocating the house on the lot. The additional credits claimed amounted to $1,503.72 and the damages alleged in the counterclaim amounted to $10,844.27.

By agreement, the case was tried by the court without a jury. Judge WILLIAM F. DANNEHOWER, who tried the case allowed the appellants additional credits of $215.97 for a dishwasher and disallowed credits of $200 paid for plans and $677.75 for stone work. He allowed the appellants $950 for defective plastering, disallowed the damages claimed for mislocating the

[ 186 Pa. Super. Page 621]

    house, and rendered a verdict in favor of the appellees for $3,913.53 with interest at 3% from April 25, 1952 to January 11, 1957 and costs, or a total verdict of $4,343.97. The appellants' exceptions were argued before the Court en banc and were dismissed, and judgment was directed to be entered on the verdict.

Most of the questions involved in this appeal are factual ones, involving the amount the appellants are entitled to as a credit on an admitted balance due on their building contract. It has been frequently held that where a case is tried by the court without a jury, the findings of fact approved by the court en banc are binding on appeal when based on sufficient evidence to support a verdict. Smith v. Kingsley, 331 Pa. 10, 14, 200 A.2d 11 (1938); Logan Lumber Co. v. Knapp, 155 Pa. Superior Ct. 580, 582, 39 A.2d 275 (1944); and, of course, the trial judge's findings of fact are entitled to great weight because he had an opportunity to hear the ...


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