Opinion
April 11, 1929.
July 2, 1929.
Buildings — Receiving and putting in place steel — Contract — Interpretation of — Oral testimony.
The contract in suit required plaintiff to receive from trucks and put in place certain structural steel, which was to be delivered consecutively. Plaintiff was to receive an extra allowance if, due to no fault of his own, he was obliged to rehandle the steel. The contract did not specify where the trucks should be unloaded, and the parties introduced conflicting oral evidence on the subject. Held: The construction of the contract in its entirety was for the jury.
Charge of court — Inadequacy — General exception.
The charge of a Court will be sustained, where a general exception is taken to it, unless the charge was so inadequate as to have misled the jury.
Appeal No. 112, April T., 1929, by defendant from judgment of C.P., Crawford County, February T., 1927, No. 39, in the case of W.J. Young v. John Grant Son.
Before TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Assumpsit for balance due under contract. Before KENT, P.J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff in the sum of $1,076.24, and judgment thereon. Defendant appealed.
Error assigned, among others, was the charge of the court.
Fred C. Bolard, and with him A.L. Kerns, for appellant.
J. Perry Eckels, for appellee.
Argued April 11, 1929.
The plaintiff claimed a balance of $1,331.83, with interest from February 8, 1927, due him by the defendants under a contract for erecting the reinforced and structural steel of two buildings, which the latter were constructing as general contractors for the Hookless Fastener Company at Meadville, Pa. He recovered a verdict of $1,011.03, with interest as aforesaid, ($1,076.24). Defendants appealed, and file two assignments of error: (1) That the charge of the court was inadequate and misleading; (2) that the court erred in refusing a new trial.
(1) The contract was in writing, in the form of an accepted proposal, and provided that plaintiff should "receive from trucks and put in place" all the necessary reinforcing steel and all structural steel pieces weighing over 150 pounds, approximating 240 tons, for $12 per ton. The contract provided, in its printed conditions, that the steel was to be shipped in proper rotation and consecutively, so as to allow erecting to proceed continuously; and that if it should be found necessary to rehandle or store steel, either at the building site or at some other point, due to no fault of the plaintiff, proper allowance to cover the extra expense should be chargeable as an extra. The chief item in dispute grew out of this clause. When making the contract plaintiff had been required to allow the defendants $200 for certain racks which the latter had built for the storage of the steel, and plaintiff averred that it was the understanding that the trucks should deliver the steel at or near these racks; and the major portion of his disputed claim was for extra expense incurred in rehandling the steel due to its not having been delivered in proper rotation and having been unloaded at points distant from the storage racks. Defendants contended that the agreement was that the trucks should deliver the steel at the building site. As the contract was silent on the subject of where the trucks should be unloaded, and both parties supplemented the written agreement by oral evidence on the subject, we find no error in the action of the court below in leaving the question to the determination of the jury. Had the typewritten portion of the contract set forth the place where plaintiff was to receive the steel from the trucks, instructions by the court as to the weight to be given the typewritten portions of the contract over the printed portions would have been appropriate, but when both parties found it necessary to interpret the typewritten part by oral testimony, it was for the jury to determine just what the contract was in this respect. The charge of the court did contain some slight mistakes as respects the quantities of steel received and erected; but as the differences between the parties on this point were small and the jury were instructed that they were to take their figures from the witnesses and not from the court, and as the verdict was for $320 less than the plaintiff's claim, we are satisfied that there was no reversible error in this respect.
With the above explanations, we do not consider the charge of the court to have been so inadequate as likely to have misled the jury, and it is only such inadequacy that is assignable under a general exception to the charge. If counsel for the appellants felt that the trial judge had insufficiently presented certain features of the case to the jury they should have requested further or more definite instructions on those points, when the judge asked if they had any suggestions to offer. The law on the subject of inadequacy of a judge's charge to the jury has been very clearly stated by the present Chief Justice in Fortney v. Breon, 245 Pa. 47 and Mastel v. Walker, 246 Pa. 65. In the light of the expressions in those cases we are unable to sustain the first assignment of error.
(2) The grounds relied on for asking a new trial were that the verdict was against (a) the law, (b) the evidence and (c) the weight of the evidence. In the absence of definite error on the part of the court below in the trial of a case, the grant of a new trial is largely in the discretion of the lower court: Aronson v. Mackey, 85 Pa. Super. 108, 114; Frendlich v. Montgomery, 89 Pa. Super. 179, 180. We find no abuse of that discretion here present. The second assignment of error is overruled.
The judgment is affirmed.