Bernheisel v. Smothers

Citations

• 5 Pa. Super. 113
• 1897 Pa. Super. LEXIS 199

Syllabus

<p>Contract — Evidence—Question for jury.</p> <p>A case is properly for the jury where the issue turns on the existence of a verbal contract for per diem compensation for services as a supervising architect, although the witnesses for the defendants were more numerous than those for the plaintiff. There was incidental, corroborative evidence in favor of plaintiff, and it was possible for the jury to determine with absolute certainty, if they believed the plaintiff, the number of days he was employed and for which he was entitled to compensation if the contract was found to exist.</p> <p>Mechanics claim — Evidence—Province of the court.</p> <p>A mechanic’s claim is not evidence, but it is not error for the trial judge, while refusing to let the claim go out with the jury, to state the total amount claimed by plaintiff adding, You will have to determine whether it is all due and, if not, how much is due.”</p> <p>Mechanic's claim — Formal objections to face of claim — Waiver by trial.</p> <p>If the subject-matter of a mechanic’s claim is apparently within the statutes, other objections to the face of the claim must be made either by motion to strike off or by demurrer to the scire facias.</p> <p>After a trial on the merits defects of form must be taken as waived.</p>