Superior Court of Pennsylvania, 1958

McGill v. Wright

McGill v. Wright
Superior Court of Pennsylvania · Decided June 11, 1958 · Beloff, Ervin, Gunther, Hirt, Jury, Rhodes, Watkins, Woodside, Wright
187 Pa. Super. 27; 142 A.2d 356; 1958 Pa. Super. LEXIS 633

McGill v. Wright

Opinion of the Court

Opinion by

Ervin, J.,

This is an appeal from an order of the court below refusing plaintiff’s motion for a new trial. Plaintiff sued in assumpsit to collect a balance of $400.00 which he alleged to be due under a written contract providing for the removal of an old shed and the erection of

*28a new one. The total contract price was $1,240.00 and the plaintiff admitted receipt of the first two instalments totalling $840.00. The evidence clearly reveals that there was a substantial performance of the contract by the plaintiff. The defendants testified that plaintiff built a room 11 feet by 10 feet 8 inches whereas the written agreement called for a room 12 feet by 12 feet; that the agreement specified the removal of an old arch in the first floor living room and the installation of a new one, whereas plaintiff “only moved the old arch over”; that the plastering was rough instead of smooth and that the work was not done promptly.

The court below found for the defendants and later dismissed plaintiff’s motion for a new trial. A new trial must be granted because the defendants presented no evidence at all to show the cost of correcting the above mentioned defects.

Order reversed and a new trial is granted.

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