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KEENAN v. LARKIN ET UX. (03/22/61)

March 22, 1961

KEENAN
v.
LARKIN ET UX., APPELLANTS.



Appeal, No. 348, Oct. T., 1960, from judgment of Court of Common Pleas of Chester County, Feb. T., 1958, No. 55, in case of John M. Keenan v. Thomas C. Larkin et ux. Judgment affirmed.

COUNSEL

William L. McLaughlin, for appellants.

J. F. Keener, with him Fred T. Cadmus, III, Thomas J. Burke, and Cadmus & Morton, and Haws & Burke, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Montgomery

[ 194 Pa. Super. Page 438]

OPINION BY MONTGOMERY, J.

This appeal is from the refusal of the court below to grant appellants' motion for a new trial and the entry of judgment on the verdict of the jury.

On or about July 15, 1954, John M. Keenan, appellee, and Thomas C. Larkin and Dolores K. Larkin, his wife, appellants, entered into an oral agreement for the lending of $1,500.00 to appellants. At the same time, the parties also agreed to mutually assist each other in the construction of dwellings for each other regarding the amount of labor and materials to be supplied by each to the other. Disputes arose between the parties as to the time for repayment of the loan and the liability of each to the other for the value and amount of work done and materials purchased.

Appellee brought an action in assumpsit seeking repayment of the loan made, reimbursement for purchase of materials, and recovery of the value of his labor on appellant's property. Appellant filed an answer admitting that he owed the $1,500.00 but claimed that this sum was not due. He also filed a counterclaim seeking recovery for the value of his services, for the purchase of materials, loss of time from his occupation when he worked on appellee's home, and for money spent on labor and materials which appellee was required to contribute.

During the course of the trial, it was stipulated that appellants were entitled to a setoff in the amount of $189.00, which represented materials purchased for and on behalf of appellee, and that appellee was entitled to $11.87 representing materials purchased by

[ 194 Pa. Super. Page 439]

    him for and on behalf of appellants. At the conclusion of the trial the jury returned a verdict for appellee in the amount of $1,695.87, representing the loan of $1,500.00 with interest from the time appellee demanded repayment, plus $11.87 admittedly due appellee, less $189.00 admittedly due appellants. Thereafter, appellants filed a motion for a new trial, which was denied, and this appeal followed.

Appellants contend here that a new trial should have been granted because the oral agreement between the parties, which was the subject of the litigation, was entire and not severable and, since appellee failed to perform under this contract, he was not entitled to recover. In addition, appellants claim that the court below committed error when it excluded certain testimony as to the fair and reasonable cost of landscaping, basing such ...


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