Medoff v. Effenberg

Opinion by Trexler, J., There are but two assignments of error and they are directed to the alleged error of the court in allowing the plaintiff to recover a quantum meruit for his services. The first assignment is as to the admission of evidence and offends against our Rule XVI which provides, “When the error assigned is to the admission or rejection of evidence, the specification must quote the questions or offers, the ruling of the court thereon, and the evidence admitted or rejected, together with a reference to the page of the paper-book or appendix where the matter may be found in its regular order in the printed evidence or notes of trial.” The second assignment is as to error in the charge of the court in that he instructed the jury that they could estimate the value of plaintiff’s services in a sum less than the amount called for by the contract. In respect to this assignment we observe that there was no exception taken to the charge of the court and that the assignment of error offends against Rule XV which provides, “When the error assigned is to the charge of the court, or to answers to points, the part of the charge or the points and answers referred to must be quoted ipsissimis verbis in the specification, and the parts of the charge assigned as error shall be inclosed in brackets in the printed charge, with the number of the assignment noted.” The only complaint of the appellant is that the plaintiff received a part of the contract price, while his statement of claim is for compensation as an architect for preparing plans for a factory building, at the rate of two and one-half per cent on $22,000, the entire cost of the construction of the building. He was discharged by defendants without cause before he had completed his contract and at the trial claimed that the work which he had done in compliance with' the contract up to the time of his discharge was two-thirds of the services required under the entire contract. His testimony [109] in this respect was admitted without objection and the court in his charge adopted the theory which was apparently agreeable to both parties to the contest, that he could recover for the services actually performed. No point as to the plaintiff not being able to recover on a quantum meruit was raised at the trial. It is too late on this appeal to raise for the first time the question as to whether the contract was an entire one: National Bank of Chester County v. Thomas, 220 Pa. 360; Martin v. Stong, 35 Pa. Superior Ct. 635; Beaver Borough v. Beaver Valley R. R. Co., 217 Pa. 280; Rotograph Co. v. Cressman, 41 Pa. Superior Ct. 14. The defendant by allowing the plaintiff to submit his proofs without objection as to the amount that was due him for the part of the contract performed must be deemed to have acquiesced in the method in which the case was presented, especially in that at no time during the trial, as stated before, it raised any question as to the method of proof. If it had raised objection we might presume, had the court sustained the objection to the admission of testimony, the plaintiff might have been able to submit testimony not open to the same objection. The assignments of error are overruled and the judgment is affirmed.