Yaukey v. Buckman , 18 Pa. Super. 378 ( 1901 )

Pee Cueiam,

Plaintiff’s lien alleged an oral contract to furnish the labor and materials for a house to be built for the defendant for which the defendant was to pay the current and market prices. On the trial plaintiff admitted that at one time there had been a contract between him and defendant to build the house for $725 but contended that this contract had been abrogated and that the house was built under a subsequent contract such as alleged in the lien. The court directed a verdict for the defendant on the ground that the plaintiff had not offered sufficient evidence to prove an abrogation of the former contract and had not shown such contract as alleged in the lien. The question is whether there was sufficient evidence of the abrogation of the special contract to submit to the jury; that is to say whether upon the facts testified to by the plaintiff and the inferences which a jury might draw therefrom a verdict for the plaintiff could be sustained. A careful examination of the plaintiff’s evidence has failed to convince us that the court committed error in determining that question in the negative. The correctness of the ruling is so satisfactorily shown in the' opinion filed by the learned judge below that we do not deem it necessary to add anything thereto. We do not see how the admitted fact that there was a dispute between the plaintiff and the defendant as to whether the latter was obliged under his contract to furnish the brackets can be reconciled with the theory that there had been a previous mutual abandonment of the contract, or can be explained upon any other theory than that of a continued recognition of it.

The pleadings are somewhat complicated and it is unnecessary to recite them at length here, but it is to be observed that the defendant put in a negative plea and by his affidavit of defense, which was filed- as special matter, and by his additional pleas alleged a special contract, and the plaintiff by his replication denied it. The case went to trial on this issue. In view of the other pleadings we do not think that the plea of tender and the payment of the money into court admitted the plaintiff’s cause of action as alleged by him and dispensed with formal proof thereof. These can only be regarded as an admission of an amount due under the special contract and for extras, and cannot be regarded as a waiver of the defense set up in his other pleas. By the introduction of his evidence the plaintiff acted upon that theory, and we do not think he would have been justified in doing otherwise. The case of Hall v. Blackburn, 173 Pa. 310, may not rule the case because it is distinguishable in its facts, as the counsel for the plaintiff have shown, but the principle recognized in that case as stated in the opinion of Mr. Justice Dean is applicable.

All the assignments of error are overruled and the judgment is affirmed.