Fonder v. Rosenstein

Citations

• 53 Pa. Super. 161
• 1913 Pa. Super. LEXIS 147

Syllabus

<p>Practice, C. P. — Amendment—Defective statement of claim.</p> <p>1. Where a case is tried on its merits on a defective statement of claim and results in a verdict and final judgment, the appellate court will treat the case as if the statement of claim had been amended so as to make it conform to the evidence produced at the trial,</p> <p>Contract — Agreement to repay expenses incurred — Building operation.</p> <p>2. In an action of assumpsit there was evidence tending to show that the defendant approached the plaintiff to secure from him an estimate for a building operation. It was agreed between them that the plaintiff should submit an estimate and should employ at a weekly salary a person to help in the preparation of the bids and other work necessary to ascertain the cost of construction. The plaintiff was to pay the salary, but was to be repaid by the defendant as soon as the bid was accepted. The right was reserved to the plaintiff to reject any and all bids. The plaintiff complied with his agreement, prepared the bids and estimates, and paid the salary of the assistant. The defendant rejected the bids; and there was evidence that at the time he made the contract with the plaintiff, he knew that he would not have money enough to carry on the operation. Held, that it was for the jury to decide whether under the evidence the plaintiff was entitled to recover from the defendant the salary which he had paid out of his own money to the assistant.</p>