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PETRO v. SECARY ESTATE. (05/02/61)

May 2, 1961

PETRO, APPELLANT,
v.
SECARY ESTATE.



Appeal, No. 13, March T., 1961, from judgment of Court of Common Pleas of Somerset County, No. 1183 C.D. 1959, in case of Mike Petro, now Erma Petro, administratrix of estate of Mike Petro, deceased, v. Arthur Secary Estate, Kay G. Secary, administratrix. Judgment reversed and case remanded.

COUNSEL

Archibald M. Matthews, for appellant.

Frank A. Orban, Jr., with him Spence, Custer, Saylor & Wolfe, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bell

[ 403 Pa. Page 541]

OPINION BY MR. JUSTICE BELL.

Plaintiff brought an action of assumpsit against the Administratrix of the Estate of the defendant who died December 23, 1958. Plaintiff died after trial but pending this appeal and is now represented by his Administratrix. Plaintiff sought to recover on an express oral contract (a) the difference between the wages he was paid as assistant mine foreman and later as mine foreman and the usual wage of an assistant mine foreman and a mine foreman for the same period of time and (b) 10% of the profits. The alleged oral contract was entered into between plaintiff and defendant in December, 1951. The claim was made, for the first time, in 1959 after defendant's death. Defendant's Administratrix (a) denied the contract, and (b) also pleaded as to part of the claim, the Statute of Limitations.

Plaintiff proved an oral contract which we shall hereinafter discuss in detail. Defendant proved that plaintiff made no demand for payment until June, 1959, and that several months before this demand he attempted to purchase the mine from defendant's estate without ever mentioning his claim for additional wages or for profits.

The Court nonsuited plaintiff with respect to his claim for additional wages because plaintiff failed to produce evidence sufficient to show the actual difference between the wages which he received and those which he allegedly should have received. The lower Court also entered a non-suit with respect to plaintiff's claim for profits prior to 1954 because of the Statute of Limitations.

It was admitted that defendant made a profit in each of the 8 years from September, 1951, to and including

[ 403 Pa. Page 5421958]

, and that plaintiff was not paid any share of the profits during any of those years.

The jury found a verdict for defendant; a new trial was refused; and from the judgment entered on the verdict, plaintiff has appealed. Plaintiff alleges three errors, only two of which merit discussion. The first error alleged was the charge of the Court as to plaintiff's burden of proof. Since this was a claim against a decedent's estate the Court charged that plaintiff must establish his right to recover by evidence "characterized as clear, precise and indubitable, and it amounts to evidence beyond a reasonable doubt. Indubitable proof is defined as evidence that is not only found to be credible but of such weight and truthfulness as to make out the facts alleged beyond a reasonable doubt." That charge finds support in Stafford v. Reed, 363 Pa. 405, 70 A.2d 345; ...


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