
    Flood v. Connor, Appellant.
    
      Contracts — Evidence—Question for jury — Practice, C. P. — Motions for binding instructions and for judgment non obstante veredicto.
    
    In an action upon a contract of employment where the only witnesses were the parties, and they were in dispute as to the terms of their contract, each contradicting the other in essentials, the court was bound to submit the case to the jury to find the facts. Motions for binding instructions in favor of defendant and for judgment non obstante veredicto were properly refused where there was evidence to support a verdict for plaintiff.
    Argued October 13, 1922.
    Appeal, No. 140, Oct. T., 1922, by defendant, from judgment of O. P. No. 1, Phila. Co., Dec. T., 1919, No. 3762, on verdict for plaintiff in the case of Terrance A. Flood v. James Connor.
    Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
    Affirmed.
    Assumpsit upon verbal contract of employment. Before Shoemaker, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff in the sum of $828.16 and judgment thereon.
    
      Error;assigned was refusal of defendant’s motion for judgment non obstante veredicto.
    
      November 23, 1922:
    
      William Biggerstaff, for appellant.
    The testimony of the plaintiff shows no demand for this additional salary, but on the contrary admits acquiescence in the amount paid him, wherefore judgment should be for defendant non obstante veredicto: Webb v. Lees et al., 149 Pa. 13; Myers v. B. & O. R. R. Co., 150 Pa. 386; P. & R. C. & I. Co, v. Schmidt et al., 254 Pa. 351
    
      Oswald M. Milligan,} for appellee.
   Opinion by

Linn, J.,

Plaintiff has judgment for a balance due on a contract of employment. Defendant appeals and complains that his request for binding instructions and his motion for judgment n. o. v. were refused.

Plaintiff averred he was employed by defendant, a contractor and builder. The employment was admitted but the parties differed as to its duties and compensation. The plaintiff alleged defendant agreed to pay him 30% of the net profits of the business during the period in dispute, and that1 thereby he was entitled to $6,123.74, of which he had received only $4,881.50, leaving due $1,242.24. The defense was that plaintiff was entitled to receive 30% of the difference, between the net profits and $4,881.50 which the plaintiff had already received; and that accordingly the plaintiff was overpaid $170.93.

The only witnesses were the parties; their testimony supported their respective allegations, each contradicting the other in essentials; in such circumstances the court was bound to submit the evidence to the jury to find the facts. As there is evidence to support the verdict, defendant’s motions were properly refused.

Judgment affirmed.  