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LEFKOWITZ v. HUMMEL FURNITURE COMPANY (05/21/56)

May 21, 1956

LEFKOWITZ
v.
HUMMEL FURNITURE COMPANY, APPELLANT.



Appeal, No. 11, Jan. T., 1956, from judgment of Court of Common Pleas of Lehigh County, Jan. T., 1956, No. 163, in case of Harry H. Lefkowitz v. Hummel Furniture Company. Judgment affirmed.

COUNSEL

W. F. Steigerwalt, for appellant.

Harold A. Butz, with him Butz, Hudders, Tallman & Rupp, for appellee.

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

Author: Arnold

[ 385 Pa. Page 245]

OPINION BY MR. JUSTICE ARNOLD

In this action of assumpsit defendant appeals from judgment entered for plaintiff upon the pleadings.

By written contract executed on March 2, 1953,*fn1 plaintiff undertook to prepare for defendant plans and specifications for construction of a building, with 40,000 square feet of floor space, on premises owned by defendant. He was to receive $10,000, - the sum of $2,500 upon the execution of the contract, $5,000 upon defendant's receipt of the plans, and the balance in five payments beginning with the date of construction. As to the five payments, it was provided that "if construction does not proceed when sixty days have elapsed after plans have been received, then the payment shall commence at that time ..."

The agreement required defendant to furnish to plaintiff for his purposes "... a complete and accurate survey of the Building site, give the grades and lines of streets, pavements, and adjoining properties; the rights, restrictions, easements, boundaries and contour of the Building site ... to pay for borings ... and for any other tests required."

[ 385 Pa. Page 246]

Defendant paid to plaintiff the sum required upon execution of the contract but no other, and on November 13, 1953 he instituted this action for the remaining $7,500. On December 9, 1953 judgment was entered against defendant for want of an appearance and answer. This judgment was opened upon stipulation of the parties whereby $5,000 was paid to plaintiff and defendant was given time to file answer to the complaint as to the remaining $2,500.

The pleadings acknowledge preparation and delivery of the plans, but defendant alleges that they were not received until four months after the contract; that "before entering into the said contract, the plaintiff ... did ...orally promise that [they] ... would be completed within approximately two months of the entering into the said agreement." They further aver the breach of the oral promise required defendant to enter into a new lease for a building to house its business because its lease expired July 31, 1953, - prior to construction of its building. Preliminary objections were sustained and judgment entered for plaintiff, the court holding that the answer was not sufficient to admit of proof.

Defendant contends that since the contract does not stipulate time for completion of the plans it does not "import a complete legal obligation without any uncertainty of the object or intent of the engagement," and that therefore the allegations of an oral promise and its ...


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