Weiner Kurtzberg v. Osnofsky ( 1927 )

Opinion by

Gawthrop, J.,

This is an action in assumpsit for work and labor done and materials furnished by plaintiffs to defendant on premises No. 2017 Columbia Avenue, Philadelphia, pursuant to an oral contract. The affidavit of defense denied that the parties entered into any contract whatever and averred that any work done by plaintiffs upon said premises was done under a contract which they entered into with one David Channin, and that any obligation to pay for any work done upon said premises arises under said contract. At the trial one of plaintiffs testified that in July, 1924, he saw defendant on said premises and that the latter took him to the cellar and told him to go ahead .and fix whatever was necessary and pointed out what was to be done, and that, pursuant to this instruction, the work and labor was done for, and the materials furnished, to, defendant. The statement of claim averred that the contract was made in November, 1924, but the evidence showed that it was made at an earlier date. Counsel for plaintiffs made a motion to amend his statement to conform to the evidence. The motion was allowed and an exception was noted for defendant, although the latter did not plead surprise. When the testimony of this Avitness was concluded and plaintiff rested, a motion for a non-suit was made on the ground that the action Avas by a partnership, and there was no evidence of any partnership relation existing between plaintiffs. When the motion was refused, defendant offered no testimony, but submitted a point for binding instructions, which was refused. From the judgment on a verdict for plaintiffs, we have this appeal, upon which the questions raised are whether error was committed in (1) refusing to enter judgment for defendant, and (2) in allowing plaintiffs to amend the statement of claim at trial.

The contention that a verdict should have been directed for defendant is grounded upon the proposition that there was a variance betiveen the statement of claim and plaintiffs’ proofs, in that the statement averred a right of action on the part of two plaintiffs, while the evidence showed a contract entered into betAveen but one of plaintiffs and defendant. As this question Avas raised on the motion for a non-suit, defendant can take advantage of it by a point for binding instructions. But we are clear that the contention has no merit. The plaintiff, Weiner, testified that he Avas in business AAdth the other plaintiff in the summer of 1924. This was sufficient, if believed, to establish a joint right of action in plaintiffs. Manifestly, there Avas no variance between the allegations and the proofs. As there was a joint action, a joint recovery was proper.

Nor is there any more merit in the complaint of the allowance of the amendment of plaintiffs’ statement at the trial. It did not amount to a change of the cause of action. Although counsel for defendant urge that the allowance thereof worked a great hardship to their client and prevented the making of a proper defense, they have failed entirely to establish that contention. Clearly, there was no abuse of discretion in dismissing the motion for a new trial, and the refusal of judgment n. o. v. was right.

The judgment is affirmed.