Elia v. Olszewski

• Decision Date: 15 November 1951
• Citation: 84 A.2d 188,368 Pa. 578
• Parties: ELIA v. OLSZEWSKI.
• Court: Pennsylvania Supreme Court

84 A.2d 188

368 Pa. 578

ELIA v. OLSZEWSKI.

Supreme Court of Pennsylvania.

November 15, 1951

Francis J. Elia sued Theodore J. Olszewski for breach of a written agreement to purchase a retail liquor business. The Court of Common Pleas of Allegheny County, at No. 203, January term 1949, Russell H. Adams, J., entered an order refusing to grant a new trial after a jury verdict for defendant, and plaintiff appealed. The Supreme Court, Ladner, J., No. 183 March term, 1951, held that the jury verdict, rendered in the face of uncontradicted testimony which there was no reasonable grounds for disbelieving, could not be allowed to stand, and that the trial court should have granted a new trial.

Judgment reversed with a venire facias de novo.

Bell J., dissented.

Morris F. Cohen, A. S. Fingold and Fingold & Fingold, all of Pittsburgh, for appellant.

Maurice L. Kessler, Pittsburgh, for appellee.

Before DREW, C. J., and STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.

LADNER Justice.

This case comes before us on an appeal from the order of the court below refusing to grant a new trial on the ground that the verdict was against the weight of the evidence. Whether in a given case a verdict should be set aside as against the weight of the evidence is primarily for the trial court and we are loathe to interfere with its discretion in that regard, whether granted, see Hershey v. Pittsburgh & West Virginia Ry. Co., 1950, 366 Pa. 158, 76 A.2d 379, or refused, Yago v. Pipicelli, 1941, 343 Pa. 222, 22 A.2d 699 and especially is this so when the evidence is conflicting. However, where, as here, there is no conflicting evidence and especially where no evidence at all is produced by the party in whose favor the verdict is rendered, the trial judge should not permit a capricious verdict to stand against uncontradicted testimony of credible witnesses whose veracity there is no apparent reason to doubt, unless such testimony is in itself inherently incredible or contradictory.

While it is true that however indisputable may be the proof resting on oral evidence, a trial judge may not assume its truth even though uncontradicted to the extent of directing a verdict or entering judgment n. o. v., yet this does not mean that a perverse or capricious verdict or one plainly against the weight of the evidence must be allowed to stand. The remedy is to grant a new trial, Nanty-Glo Borough v. American Surety Co., 1932, 309 Pa. 236, 163 A. 523, and repeatedly if necessary, Maloy v. Rosenbaum Co., 1918, 260 Pa. 466, 103 A. 882; Bradican v. Scranton Ry. Co., 1918, 260 Pa. 555, 103 A. 1013; Shaughnessy v. Director General of R. R., 1922, 274 Pa. 413, 118 A. 390, 23 A.L.R. 1211.

In the case before us the plaintiff appellant entered into a written contract whereby defendant agreed to purchase plaintiff's retail liquor license, business fixtures, equipment, etc., for the sum of $35,000. The complaint averred defendant's refusal to perform; that plaintiff offered the business for sale in the open market, procured a bona fide offer of $23,000, gave defendant a final opportunity to perform and upon defendant's failure to do so, sold the business for $23,000. Damages are claimed in the sum of $12,000, being the difference between the contract price and the amount received from the second purchaser. The defendant in his answer admitted executing the contract and admitted his breach. To the averments as to the sale for $23,000 after defendant refused to perform, defendant answered a general denial and demanded proof for the reason that he was ‘ without knowledge or information relative to the same because means of proof are within the exclusive control of the plaintiff.’ It may be doubted whether this was a sufficient denial under Pa.R.C.P. 1029, 12 P.S.Appendix.^[1] However that may be, the breach having been admitted the case went to trial on the single issue whether the resale was actual and bona fide.

To establish this fact the plaintiff called Morris F. Cohen, Esq., a member of the bar since 1934 who represented plaintiff in the transaction, and who testified in substance that after defendant breached his agreement to purchase he notified all real estate men, beer distributors and everyone else he thought might be interested in the purchase of a liquor license and restaurant business and as a result of his efforts secured Josephine Levine and her husband, who were bona fide purchasers.

This testimony was supplemented by Daniel Kraus, Esq., the attorney who represented the new purchasers who bought for $23,000. He testified to the details of the payment of the purchase...