Appeal, No. 188, Oct. T., 1956, from order of Court of Common Pleas of Delaware County, Sept. T., 1955, No. 1573, in case of Leo Carney v. Girsh-Moss, Inc. Order affirmed; reargument refused January 23, 1957.
C. Norwood Wherry, with him William Taylor, Jr., and Holl, Taylor & Holl, for appellant.
Robert W. Beatty, with him Butler, Beatty, Greer & Johnson, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 183 Pa. Super. Page 100]
The appellant, Leo Carney, a sub-contractor, entered into an oral contract with Raylis and Craven, Inc. under the terms of which he was to supply and lay the sod for new homes in a housing development owned by Girsh-Moss, Inc., appellee. After the work was completed and the contractor had failed to pay him in full, he brought suit against Girsh-Moss, Inc. contending that the defendant had made an enforceable promise of payment sufficient to take the case out of the statute of frauds. He now appeals from the refusal of the court below to take off a non-suit entered at trial.
About March 31, 1955 the work of laying the sod began and on April 12 the appellant billed Raylis and Craven, Inc. for $1,295.00. On April 22, 1955, $1,000.00
[ 183 Pa. Super. Page 101]
was paid on account. In May, 1955, appellant had a discussion with Cotler, general manager and superintendent of Girsh-Moss, Inc., and Starrett, general superintendent for Raylis and Craven, Inc. Carney testified that he discussed payment of his bill with the two of them and that Cotler said, "Don't worry about the money, you will get the money," and that Starrett said he would get his money because Girsh-Moss, Inc. was holding money back to make sure the sub-contractors would be paid. Carney further testified that on Friday, May 27, Cotler called him on the telephone to tell him that the houses were ready to be finished and wanted Carney to finish them, whereupon Carney said that he did not think he was going to do them because he had not received any money for the second part of the work. According to Carney, Cotler told him to go ahead and do the job and when he had finished, to send a duplicate bill to Girsh-Moss, Inc. and they would see that he got his money. On May 31, the day after Memorial Day and the first working day after this telephone conversation, Carney resumed work at Irvington Park and continued until the second or third of June when the job was completed. On June 3, 1955 Carney sent a bill for the balance due to Raylis and Craven, Inc. and a duplicate was sent to Girsh-Moss, Inc.
Frank Starrett, general superintendent for Raylis and Craven, Inc., having been called as a witness for the appellant, also gave evidence concerning the conversation on March 31, 1955. He testified, "Well, there was the question of payment and Leo said he wanted to be sure he got his money. Mr. Cotler said to me 'Do you think it would be all right if we paid Mr. Carney direct.' I said, 'I should think so.' ... And then he said, 'All right, we will pay you direct.'"
[ 183 Pa. Super. Page 102]
Another witness, Thomas L. Meyer, an employee of Carney, stated that according to his best recollection the following conversation took place between Carney and Cotler sometime between May 22 and June 3, 1955, "Paul said, 'When can I get this sod in' and he said 'I got to get these houses passed.' And Leo said, 'There isn't much, only a few spots that you got to grade, when you went down too far, a truckload or two, but I want to know about the money for the work that has been done already, before I ...