
    Olies Hedge et ux vs. Benedetto Matteo et al
    No.64854
    June 24, 1926
   CAPOTOSTO, J.

The plaintiffs seek a new trial after the jury returned a verdict for the defendants on the plaintiffs’ claim for reimbursement on account of defective workmanship in the erection and construe-' tion of a house which the defendants built for the plaintiffs.

The case as tried presented a square conflict of testimony between the parties. The defendants maintained that they had complied with their contract and that no claim was made by the plaintiffs on account of defective work until the defendants began to press the plaintiffs for payment. The plaintiffs, on the other hand, sought to establish that the work was very poorly done, that the defects were obvious and patent, and that it would take considerable money to remedy the unsatisfactory conditions. There is a line of testimony which tends to prove that as to certain defects, if existing as claimed, the plaintiff Olies Hedge is directly responsible for his unwarranted removal and attempted replacement of batter boards, which resulted in a ma-' terial shifting of the building lines, and further by his tampering with the piazza foundation.

For Plaintiffs: James E. Brennan.

For Defendants: Radeliffe G. E. Hicks.

The main claim is that the house unreasonably sagged towards the cen-tre by reason of unsatisfactory un-derpining and that such sagging produced a cracking of the walls and ceilings and a serious disturbance of the floor levels and doors. There was no evidence on the part of the plaintiffs, other than the broad claim of undue settling, as to what the result complained of was due to. No specific variation by the builders from the plans, which were not produced, or the specifications was indicated. Furthermore, no opportunity to view the premises, which were described as conspicuously unacceptable, was given the jury, for the reason that the plaintiffs did not ask that a view of the premises be taken.

The plaintiffs had the benefit of experienced counsel who saw fit to rest his case upon conflicting testimony which might lead a jury to one result or another in accordance with its appreciation of the credibility of the witnesses who testified.

In view of all the circumstances the jury was justified in finding either that the defendants had substantially performed their contract or that the plaintiffs had failed to prove their case by a fair preponderance of the testimony.

Motion for new trial denied.  