Appeal, No. 149, March T., 1961, from judgment of Court of Common Pleas of Allegheny County, April T., 1953, No. 3508, in case of Leonard J. Mackell v. Joseph J. Graciano et al. Judgment affirmed.
James H. Brennan, with him Maurice Chaitkin, and Brennan and Brennan, for appellants.
William S. Schweers, with him McArdle, Harrington & McLaughlin, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY JUSTICE ALPERN.
This case arises out of an action in assumpsit where the jury returned a verdict in the amount of $5,500. The defendants filed motions for judgment n.o.v. and for a new trial.
This was the second trial. In the first trial held in 1956, the jury awarded the plaintiff $5,386.70. The defendants filed motions for judgment n.o.v. and for a new trial. Because the court reporter had died before the testimony could be transcribed, the court ordered a new trial. In the second trial, the jury returned a verdict for the plaintiff in the sum of $5,500. The defendants again filed motions for judgment n.o.v. and
for a new trial. They were refused by the court below.
Leonard J. Mackell filed suit in assumpsit on March 30, 1953, against Joseph J. Graciano, Richard A. Graciano and Joseph F. Graciano, a partnership doing business as Joseph J. Graciano Company. The suit was based upon an oral contract with the Graciano Company which Mr. Mackell claimed entitled him to a ten per cent commission on the contract price of $47,504, paid to the Gracianos for work done on the exterior of the Grant Building under a contract dated September 10, 1951.
The contract developed under the following circumstances: Mr. Mackell had known Verne Hunter since 1947 and had a close personal association with him. Mr. Hunter was the building superintendent of the Grant Building; Mr. Mackell worked for a company with offices on the same floor. In June of 1950, Mr. Hunter mentioned to Mr. Mackell that the Grant Building was planning to point, calk, and clean the building and that he had an appointment with a friend of his from the Chicago area who was interested in the contract. At that time Mr. Mackell advised Mr. Hunter that he had an acquaintance in that business in the Pittsburgh area who was competent to do this type of work - a Mr. Richard Graciano. Mr. Hunter was interested to learn that there was somebody competent within this area.
Mr. Mackell testified that he and Richard Graciano flew together in the naval reserve during portions of the years from 1947 to 1950. He telephoned Richard Graciano and made an appointment to see him in his office the following day. He told him about the contemplated work on the Grant Building. Mr. Graciano expressed an interest in procuring the job. Mr. Mackell ...