W. T. Corbett, Pittsburgh, for appellant.
Jacob Shulgold, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Arnold, JJ. Rhodes, P. J., and Hirt, J., dissent. Gunther, J., absent.
[ 169 Pa. Super. Page 175]
Defendant appealed to the County Court of Allegheny County from a judgment entered against him by a justice of the peace in an action of assumpsit brought by plaintiff to recover a balance alleged to be due for labor and material supplied pursuant to an oral contract. No request for findings of fact having been made, the trial judge, who heard the case without a jury, found generally for plaintiff and entered judgment against defendant in the sum of $119.04. Whereupon, defendant filed separate motions for judgment on the whole record and for a new trial, contending
[ 169 Pa. Super. Page 176]
that the verdict of the court was against the law and the evidence. From the denial of these motions by the court en banc this appeal was taken.
Plaintiff alleged that he was engaged on or about March 20, 1949, as a subcontractor by defendant 'to remove, repair, replace, and hang splash boards, gutters, and molding' on the roof of premises owned by a third party 'and to install five (5) spouting outlets, in consideration for which the Defendant was to pay the Plaintiff the sum of Three ($3.00) Dollars per hour for the time necessary to do all the work prior to and preparatory to the installation of the new gutters.' Plaintiff further alleged that at the conclusion of the job he was entitled to $162.30.
Defendant denied that the terms of the oral contract were as alleged by plaintiff and averred, to the contrary, that he engaged 'the Plaintiff as a sub-contractor [only] to remove and rehang gutters on the premises' and that the agreement 'provided for a total charge of Forty ($.40) cents per foot for removal and replacing of the gutters; that there were One Hundred Seventeen (117) feet of gutter to be replaced or a total amount of Forty-six and 80/100 ($46.80) Dollars, plus material in on the job.'
Under circumstances to appear later, plaintiff rendered a bill for $162.30 on March 28, 1949. Defendant then wrote plaintiff the following letter dated April 1, 1949: 'Enclosed you will find a check in the amount of $50.00 for full payment of installing gutters at 6949 Blenheim Court. Our verbal agreement was that the gutters were to be installed at the rate of .40 cts. per foot. You must certainly think I am a fool to pay you in the amount of $162.00 for your work when I have a signed contract with the customer for $194.00. Three witnesses were present who heard our agreement. If you do not care to accept this check as full payment return it to me by mail, suit yourself.
[ 169 Pa. Super. Page 177]
In the second place the job you did for me is so crude it's funny, please do not annoy me with any phone calls.' On the back of the enclosed check was written as follows: 'Cashing this check is acknowledgement of payment in full for gutter job at 6949 Blenheim St. Pgh. Pa.' After scratching out these words, plaintiff endorsed the instrument, cashed it and subsequently ...