Osbourn v. Magee Carpet Co. , 67 Pa. Super. 100 ( 1917 )

Opinion by

Head, J.,

A study of the material facts of the case at bar, as detailed in the evidence and established by the verdict, leads to the conclusion it is practically ruled by Szok v. Crown, 33 Pa. Superior Ct. 612. It readily distinguishes itself from Bernstein v. Hirsch, 33 Pa. Superior Ct. 87, and our more recent case of United States Casualty Co. v. Charles E. Mather in which an opinion has this day been handed down.

The pleadings disclose that the real contest between the parties was the extent and character of the work to be performed by the plaintiff. There is no dispute that an oral contract between them was entered into. It required the performance by the plaintiff of certain professional work of the kind done by one who in these modern days is called “an efficiency engineer.” There is no dispute between the parties as to the amount of money he was to be paid on the completion of what he had undertaken to do. The plaintiff claimed he was to make a thorough examination of the plant of the defendant company, a study of its manufacturing facilities. He was to determine in what respects, if any, there was lack of economy in the operation of the plant, and he was to make a report of his work with such recommendations as to methods of improvement as might be suggested by his professional skill and experience. His contention is that with the performance of the duties we have mentioned, his right to the agreed-on price, to wit, $500, was complete. He further testifies that it then remained open to the defendant company to determine for itself whether or not it would make the suggested improvements. If his report was adopted and the improvements determined upon, then, as he contends, for a further consideration to be fixed by a percentage of the cost of the improvements, lie was to furnish all necessary plans and specifications and supervise the construction. The defendants, per contra, testified the plaintiff was to do not only all of the things mentioned in his testimony, but that he was further to furnish plans and specifications for the suggested improvements and all of this for the price agreed on, to wit, $500.

It is clear therefore the parties were at issue on a question of fact and that issue could be resolved in no other way than by a submission of it to the jury. The learned trial judge so submitted it in what we regard as an impartial charge and the jury found for the plaintiff. This verdict established that plaintiff had performed everything to be by him done and‘performed, and as a consequence there was due to him the contract-price agreed upon less the payment to which we shall now briefly refer.

On the 26th of November the defendant wrote a letter to the plaintiff beginning in this way: “Inclosed find ck. for $100 on account and paid in accordance with this letter. Sorry to have delayed this, &c.” The letter then goes on at considerable length to describe the financial difficulties of the defendant at that time and then proceeds to state that plaintiff had failed to furnish plans and specifications for certain electric generators, etc., which, under the terms of their oral agreement, he was obliged to furnish. A check for the sum named was enclosed and the check contained this statement, “As per letter and statement of even date. No receipt required. If not correct, return without alterations.” Upon the receipt of this check, the plaintiff with a pen struck out the expression “as per letter and statement of even date” and inserted in its stead the following, “For eng. serv. on acct.” At the same time he mailed a letter to the defendant company repudiating their statement of the contract and declining to be bound by what had been written on the check which he advised the company he had altered.

Two things destructive of the defendant’s theory of an accord and satisfaction are at once apparent. The defendant clearly acknowledged that it owed at least the sum of $100. The payment of that and its acceptance by the plaintiff could not debar him from bringing an action for the balance of the debt due if any such balance existed. Consequently, under the disputed facts, no logical conclusion could be drawn by the court, as a matter of law, that the minds of the parties were in accord on the proposition that the receipt of $100, admittedly due and owing, must be accepted in satisfaction of the balance of the claim.

It is quite clear to us therefore that the learned trial judge could not with propriety have directed a verdict in favor of the defendant for the manifest reason that without such verdict it was impossible to determine what services the plaintiff was bound to render before the admitted contract-price became due and payable. In Szok v. Crown, supra, our Brother Morrison used this language, inter alia: “What, then, is the real dispute? It is whether or not there was a second contract that the defendant should be allowed to retain a reasonable sum for his services-. It is quite clear that the jury found there was no such second contract. We are unable to see how the case could have been properly tried without submitting to the jury, under the evidence, what the real contract was.”

The assignments of error are overruled.

Judgment affirmed.