Osterling v. Carpenter

Citations

• 230 Pa. 153
• 79 A. 405
• 1911 Pa. LEXIS 580

Syllabus

<p>Contract — Evidence—Architect’s plans — Charge of jury — Trial appeals —Practice—Reversal of judgment — Remittitur—Venire facias.</p> <p>1. In an action by an architect to recover renumeration for various plans, including a plan for a station, it is error to permit a recovery for the station plan where it appears that although in the letter from the plaintiff to defendant submitting a proposal, there was mention of a station plan, the letter in reply did not refer to the station plan, and there is nothing in the evidence to show that the plaintiff ever submitted the station plan, or that the defendant had ever approved one, or agreed to pay for the same, and it also appears that the contract set up by the plaintiff called for remuneration on a commission basis, while the item claimed on account of the station plan was on a quantum meruit.</p> <p>2. In such a case it is also error to permit the plaintiff to recover commissions for plans of a tomb which was to cost $70,000 where the evidence shows that while .the parties may have originally contemplated a $70,000 tomb they subsequently agreed on plans for a $40,000 tomb, and that the plans actually prepared and accepted were for a tomb not to exceed in cost $40,000, the actual cost of the tomb as erected and that under the agreement the architect’s commission was to be computed on the cost of the completed tomb.</p> <p>3. The Supreme Court in reversing a judgment on a verdict which included the compensation for the station plan, and commissions on a $70,000 tomb, awarded a venire facias de novo unless the plaintiff within ten days after the remitting of the record should file a stipulation agreeing to remit the item of the station plan, and commissions on the cost of the tomb in excess of $40,000 with interest, and further directed that if such remittitur was filed final judgment should then be entered for the plaintiff for the amount so ascertained.</p>