Williamson and Messinger v. Sale

94 Pa. Super. 435, 1928 Pa. Super. LEXIS 220

• Court: Superior Court of Pennsylvania
• Decided: October 18, 1928
• Docket: Appeal 315
• Status: Published

Opinion

Opinion by

Gawthrop, J.,

Plaintiffs’ action was brought to recover a balance claimed to be owing for work done and material furnished in installing parquetry floors. The affidavit of defense and counter-claim averred that as the result of the use of green lumber and bad workmanship defendant was obliged to have the work done over in part at a cost in excess of the balance sued for, and notice was given of the intention to ask for a certificate against plaintiffs. It was averred also that defendant notified plaintiffs that he would have the work done over so far as the defective portion was concerned, at their expense, unless they remedied the defect, and that plaintiffs paid no attention to the demand. At the trial witnesses called by plaintiffs testified that the work was done in a good and workmanlike manner. Defendant’s witnesses supported the averments of his affidavit of defense and counterclaim. The trial judge directed a verdict for plaintiffs for the full amount of their claim. Defendant appealed.

The only assignment of error Avhich Are need to consider is that complaining of the directed verdict for plaintiff. It must be sustained. The jury should have been instructed to find the fact's on the evidence introduced. The credibility of the Avitnesses was for that tribunal: Charick v. Sims & Co., 91 Pa. Superior Ct. 588.

The judgment is reversed and a new trial is awarded.