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C. VICTOR SHUEY v. JOHN F. RUMP (08/08/80)

filed: August 8, 1980.


No. 1264 October Term, 1979, Appeal from Order of the Court of Common Pleas of Lebanon County, at No. 982, 1978, dated May 16, 1979. Civil Action, Law.


Thomas P. Harlan, Lebanon, for appellants.

David J. Brightbill, Lebanon, for appellee.

Brosky, Wickersham and Roberts, JJ.*fn*

Author: Roberts

[ 279 Pa. Super. Page 527]

This case arises from a dispute over an oral contract to build a house. The builder claims that the contract was for materials and an hourly labor charge, the owners claim that the agreement was for a fixed price of $35,000. The owners, John and Anita Rump, paid the $35,000 but refused further payment. The builder, C. Victor Shuey, ceased work before the house was completed and brought suit for $6,341.25, the amount over $35,000 he claims still due him for his work, based on materials and labor. The Rumps counterclaimed for $10,237.28 alleging that certain work was not performed properly and that, contrary to the agreement, certain fixtures and appliances were not supplied. A jury returned a verdict for Shuey in the amount of $6,308 and also awarded the Rumps $800 on their counterclaim. The owners, the Rumps, now appeal the jury award to builder Shuey.

[ 279 Pa. Super. Page 528]

At trial Shuey called Paul Reber, a local contractor, as an expert witness. Pretrial discovery indicated that Reber, who had viewed the Rumps' home, would testify as to the defects on which the Rumps' counterclaim was based. Reber did testify on this issue. Then, however, Reber began to testify on what he, as a local contractor, would have charged to build a similar home at that time. The Rumps timely objected to this testimony and asked to approach the bench. At sidebar, counsel for the Rumps explained that he was surprised by the theretofore undisclosed nature of Reber's new testimony and asserted that such testimony was irrelevant. The trial court overruled these objections and allowed Reber to proceed. Reber then testified that, at the time the Rumps' home was built, he was charging $31 per square foot for housing and $10 per square foot for garage construction. The square footage of the Rump home and garage was then given to the jury. Based on these figures Reber's testimony was to the effect that his charge for such a house would have been something over $50,000, a figure clearly higher than either the $35,000 fixed price claimed by the Rumps or the approximately $41,000 cost claimed by Shuey. We conclude that the trial court erred in admitting over objection this testimony.

The principal dispute in this case concerns the terms of an express oral contract. The only question then is which party has stated the terms of the contract correctly. The Rumps did not claim that Shuey's price of approximately $41,000 was unreasonable. Rather they claimed only that he had agreed to build the house for the fixed price of $35,000. Expert testimony as to what other local contractors might have charged for similar construction is thus beside the point. This is established by our Supreme Court's unanimous decision in Snyder v. Markitell, 356 Pa. 391, 52 A.2d 186 (1947), a case very similar to this one. As then Justice, later Chief Justice, Horace Stern explained:

"The only question . . . for the jury was this: Which of the parties had correctly stated the terms of their agreement? But [the owners] offered the testimony of two

[ 279 Pa. Super. Page 529]

    builders, alleged experts, who were asked the highly ambiguous question: "What in your opinion would be the cost of that work to the owner?" This presumably was intended to elicit from them an estimate as to what they themselves would have charged for the work, or what they thought other contractors might have charged . . . . The admission of this testimony over [the builder's] objection was clearly erroneous: Seibert v. Householder, 8 Sadler 576 [10 A. 784]; Blank v. Shoemaker, 65 Pa. Super. 255; United Embroidery Co., Inc. v. Gorin, 97 Pa. Super. 598. It raised an issue that was not in the case. [The builder] was not suing on a quantum meruit but on an express contract. If [the owners'] version of the agreement was to prevail [the builder] was entitled only to the flat price agreed upon; if, on the other hand, [the builder's] version was accepted by the jury he was entitled to the sums actually expended by him for material and labor . . . ."

Id., 356 Pa. at 394, 52 A.2d at 187. In Snyder the owner attempted to show that the builder's claim was higher than the usual local cost for such construction. Here the builder sought to show that his claim was ...

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