Appeal, No. 275, March T., 1962, from order of Court of Common Pleas of Indiana County, Dec. T., 1958, No. 129, in case of Raymond T. Blanchard and Betty Lou Blanchard v. B. O. Wilt and Eugene T. Wilt, individually and trading and doing business as B. O. Wilt and Son. Order affirmed.
James W. Mack, Jr., for appellants.
Alexander A. Notopoulos, with him Martin Goodman, W. Parker Ruddock, and Goodman & Notopoulos, for appellees.
Before Bell, C.j., Musmanno, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE EAGEN
The plaintiffs, Raymond T. Blanchard and Betty Lou Blanchard, retained the defendants, B. O. Wilt and Eugene T. Wilt, trading as B. O. Wilt and Son (Wilt), a partnership engaged in the general contracting business, to remodel their home. Wilt hired Clyde Nehrig to perform the plumbing work as an independent subcontractor. During the course of the work, the house was extensively damaged by fire, allegedly caused by the negligence of both contractors, Wilt and Nehrig, or their employees.
The Blanchards instituted separate actions against Wilt and Nehrig. Independent and separate acts of negligence were specifically set forth against each defendant in the separate complaints. Damages in the amount of $11,092.10 were claimed. The action against Wilt was tried first. The lower court entered a compulsory non-suit.*fn1 The following day the action against Nehrig was called for trial. By agreement of the parties, the trial court without the taking of testimony, directed the jury to return a verdict in favor of the plaintiffs and against the defendant in the sum of $3250. No judgment was entered on the verdict, however, a receipt of payment was filed of record, the verdict marked satisfied and the action discontinued.
Subsequently, the present action of Blanchard against Wilt was called for retrial. The defendants moved for a compulsory non-suit on the ground that the consent verdict in the action against Nehrig operated as a release in favor of all parties. This was overruled. A verdict in favor of plaintiffs was returned by the jury in the amount of $6000. A motion for judgment notwithstanding the verdict was refused and a new trial granted. The defendants appeal from the refusal to enter judgment n.o.v.
The basic issue raised by this appeal is whether or not the consent verdict against the subcontractor bars any further recovery by the plaintiffs.
At the trial of the instant case, the appellants introduced the following letter from ...