Magar v. Lifetime, Inc.
| Citation | 187 Pa.Super. 143,144 A.2d 747 |
| Parties | Arthur J. MAGAR v. LIFETIME, Inc., Appellant. |
| Decision Date | 11 September 1958 |
| Court | Superior Court of Pennsylvania |
Stephen J. Korn, Nathan L. Posner, Fox, Rothschild, O'Brien & Frankel, Philadelphia, for appellant.
Pershing N. Calabro, Philadelphia, for appellee.
Before RHODES, P. J., and HIRT, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.
The plaintiff is a home owner in Philadelphia. The defendant corporation is engaged in the 'home improvement business' with offices in that city. On February 26, 1955, the defendant by written contract with the plaintiff, undertook to 'apply plastic plastering' on the four exterior walls of plaintiff's cement block house for a consideration of $1,100. In this action the plaintiff alleged that the material applied to the building was not in conformity with the samples submitted by defendant at the time the contract was entered into; also that the material was improperly applied; and sought damages resulting from defendant's failure to perform the work in accordance with its contract. Along with the contract plaintiff had signed a note for $1,100 payable in 36 monthly payments of $36.69 each which defendant discounted at a bank two weeks after the work started. Prior to the trial of this case plaintiff had paid a total of $1,320.84 to the bank, which had financed the plaintiff's obligation, in satisfaction of the note. Although plaintiff did not allege complete failure of performance, the jury found for the plaintiff in the sum of $1,320.84. The amount of the verdict is the exact contract price of $1,100 plus $220.84 representing the financing charges, including interest, incurred by plaintiff on his obligation to the bank which had purchased his note. The judgment entered on the verdict will be reversed.
'Damages are never presumed; the plaintiff must establish by evidence such facts as will furnish a basis for their assessment, according to some definite and legal rule'. Rice v. Hill, 315 Pa. 166, 172, 172 A. 289, 291; Maxwell v. Schaefer, 381 Pa. 13, 21, 112 A.2d 69. Where a claim is for pecuniary damages the evidence must fix the actual loss with reasonable precision through witnesses with knowledge of the facts. Forrest v. Buchanan, 203 Pa. 454, 53 A. 267. Cf. In re Friese's Estate, 336 Pa. 241, 246, 9 A.2d 401, 125 A.L.R. 1016. 'Where the subject to a contract relates to building or construction, the measure of damages [for breach by the contractor] is the reasonable cost to the owner of completing the contract * * *'. Myer Feinstein Co., to use of Edward G. Holloway v. De Vincent, 151 Pa.Super. 254, 257, 30 A.2d 221, 223; Restatement, Contracts, § 346.
The contract by its terms specifically stated the extent of the contractor's liability for defective performance, in this language: The limitation of liability for damages thus agreed upon in the contract was valid and enforceable....
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Greenspan v. ADT Sec. Servs. Inc.
...564 A.2d 919, 929 (Pa. Super. Ct. 1989) (upholding limitation of liability clause in contract governed by the UCC); Magar v. Lifetime, 144 A.2d 747, 749 (Pa. Super. Ct. 1958) (same); Vasilis v. Bell of Pa., 598 A.2d 52, 54 (Pa. Super. Ct. 1991) (upholding limitation of liability clause in c......