Young v. John Grant & Son

Opinion by Keller, J., 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 neces *458 sary reinforcing steel and all structural steel pieces •weighing over 15(3 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 hi's disputed claim was for extra expense incurred in rehandling the steel due to it's 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 *459 quantities of steel received and erected; but as tbe differences between the parties on tbis point were small and tbe jury were instructed that they were to take their figures from tbe witnesses and not from tbe court, and as tbe verdict was for $320' less than tbe plaintiff’s claim, we are satisfied that there was no reversible error in tbis respect. With tbe above explanations, we do not consider tbe charge of tbe court to have been so inadequate as likely to have misled tbe jury, and it is only such inadequacy that is assignable under a general exception to tbe charge. If counsel for tbe appellants felt that tbe trial judge bad insufficiently presented certain features of tbe ease to tbe jury they should have requested further or more definite instructions on those points, when tbe judge asked if they bad any suggestions to offer. Tbe law on tbe subject of inadequacy of a judge’s charge to tbe jury has been very clearly stated by tbe present Chief Justice in Fortney v. Breon, 245 Pa. 47 and Mastel v. Walker, 246 Pa. 65. In tbe light of tbe expressions in those ease's we are unable to sustain tbe first assignment of error. (2) Tbe grounds relied on for asking a new trial were that tbe verdict was against (a) tbe law, (b) tbe evidence and (c) tbe weight of tbe evidence. In tbe absence of definite error on tbe part of tbe court below in tbe trial of a case, tbe grant of a new trial is largely in tbe discretion of tbe lower court: Aronson v. Mackey, 85 Pa. Superior Ct. 108, 114; Frendlich v. Montgomery, 89 Pa. Superior Ct. 179, 180. We find no abuse of that discretion here present. Tbe second assignment of error is overruled. Tbe judgment is affirmed.