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HEAT AND POWER CORPORATION v. FOUST DISTILLING COMPANY (06/28/54)

June 28, 1954

HEAT AND POWER CORPORATION
v.
FOUST DISTILLING COMPANY, APPELLANT



Appeal, No. 15, May T., 1954, from judgments of Court of Common Pleas of York County, Jan. T., 1951, No. 99, in case of The Heat and Power Corporation v. Foust Distilling Company. Judgments affirmed. Assumpsit and counterclaim by defendant. Before SHERWOOD, P.J. Verdict for plaintiff and against defendant on counterclaim, and judgment entered thereon. Defendant appealed.

COUNSEL

Arthur Markowitz, with him Markowitz, Liverant, Boyle & Rahauser, for appellant.

William H. Kain, with him Kain, Kain & Kain, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Musmanno

[ 378 Pa. Page 134]

OPINION BY MR. JUSTICE MUSMANNO

The Heat and Power Corporation, plaintiff in this case, entered into a contract with the Foust Distilling Company, the defendant, for a "New Boiler Installation" at the Glen Rock Distillery of the defendant company. In a letter from the plaintiff to the defendant dated December 21, 1945, the plaintiff outlined what it would supply and install. In a letter from the defendant to the plaintiff dated August 27, 1946, the defendant stated what it would accept. The plaintiff company began its installation work on January 15, 1947 but on April 30, 1947, it was ordered by the defendant to desist, the defendant complaining that defective equipment was being installed.

The plaintiff thereupon sued the defendant for breach of contract and the defendant counterclaimed against the plaintiff for breach of warranty. The plaintiff recovered a verdict of $39,471.08. The defendant failed in its counterclaim and moved for judgment n.o.v. and a new trial on the plaintiff's claim, and for a new trial on its counterclaim. The lower court affirmed the verdicts and entered judgments thereon. The defendant appealed.

Although many matters were involved in the lawsuit, only one is the subject to contention in this appeal, namely, item No. 6 of the offer and acceptance.

[ 378 Pa. Page 135]

In the letter of December 21, 1945, the plaintiff offered:

"6. For the installation of 2 Westinghouse Single Retort Stokers with necessary equipment and damper control, we ask the sum of Eight Thousand, Five Hundred Dollars --

$8,500.00

The Foust Distilling Company ...


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