Flood v. Connor , 1922 Pa. Super. LEXIS 14 ( 1922 )

Opinion by

Linn, J.,

Plaintiff has judgment for a balance due on a contract of employment. Defendant appeals and complains that his request for binding instructions and his motion for judgment n. o. v. were refused.

Plaintiff averred he was employed by defendant, a contractor and builder. The employment was admitted but the parties differed as to its duties and compensation. The plaintiff alleged defendant agreed to pay him 30% of the net profits of the business during the period in dispute, and that1 thereby he was entitled to $6,123.74, of which he had received only $4,881.50, leaving due $1,242.24. The defense was that plaintiff was entitled to receive 30% of the difference, between the net profits and $4,881.50 which the plaintiff had already received; and that accordingly the plaintiff was overpaid $170.93.

The only witnesses were the parties; their testimony supported their respective allegations, each contradicting the other in essentials; in such circumstances the court was bound to submit the evidence to the jury to find the facts. As there is evidence to support the verdict, defendant’s motions were properly refused.

Judgment affirmed.