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MORSE-BOULGER DESTRUCTOR COMPANY v. MELLON-STUART COMPANY (01/21/58)

January 21, 1958

MORSE-BOULGER DESTRUCTOR COMPANY
v.
MELLON-STUART COMPANY, APPELLANT.



Appeal, No. 186, April T., 1957, from judgment of Court of Common Pleas of Allegheny County, April T., 1955, No. 1364, in case of Morse-Boulger Destructor Company v. Mellon-Stuart Company. Judgment affirmed.

COUNSEL

Charles C. Arensberg, with him Charles F.C. Arensberg and Patterson, Crawford, Arensberg & Dunn, for appellant.

Louis H. Artuso, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Rhodes

[ 185 Pa. Super. Page 317]

OPINION BY RHODES, P.J.

This is an appeal by defendant against which a judgment was entered in an action of assumpsit brought by plaintiff to recover the balance alleged to be due on the purchase price of a special industrial incinerator, which it had constructed on order from

[ 185 Pa. Super. Page 318]

    defendant, and the cost of alleged repairs subsequently made to the incinerator.

Defendant, as general construction contractor, ordered the incinerator for use in burning the starch waste solution of the plant of the National Gypsum Company, at Alexandria, Indiana. In its answer to the complaint in assumpsit defendant filed a counterclaim in which it asserted that all repairs made were the result of plaintiff's faulty construction of the incinerator. Plaintiff, on the other hand, claimed that the repairs were made necessary by the fact that the waste material to be destroyed was not limited to solids of one per cent as represented by Pantech, Inc., agent for National Gypsum Company; that the solution in fact had a solid content approximating three per cent; and that it contained rock wool fibers which were nonsoluble.

The case was submitted to Judge MONTGOMERY, sitting without a jury, who found for plaintiff in the amount of the contract balance of $2,030.40, together with the cost of repairs incurred by plaintiff of $1,397.94, less $666.46. The latter was the allowed expense which defendant incurred by reason of plaintiff's erroneous reversal of the burners in the original installation. Exceptions filed and argued before the court in banc were dismissed. Judgment was entered for plaintiff against defendant for $2,761.88, with interest from August 11, 1954, to May 3, 1957, a total of $3,213.61.

On this appeal, where the factual issues have been submitted to a judge, sitting without a jury, all findings of fact, if supported by the evidence and affirmed by the court in banc, are binding upon us on appeal. United States Gypsum Company v. Birdsboro Steel Foundry & Machine ...


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