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TRI-STATE ROOFING COMPANY UNIONTOWN v. SIMON (06/11/58)

June 11, 1958

TRI-STATE ROOFING COMPANY OF UNIONTOWN
v.
SIMON, APPELLANT.



Appeal, No. 160, April T., 1958, from judgment of Court of Common Pleas of Allegheny County, July T., 1957, No. 1220, in case of Tri-State Roofing Company of Uniontown v. J. S. Simon, doing business as J. S. Simons Co. Judgment affirmed.

COUNSEL

William Sloan Webber, with him Gustav M. Berg, for appellant.

Edward P. Good, with him Howard I. Scott, Herman M. Buck, Kountz, Fry & Meyer, and Ray, Couldren & Buck, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Ervin

[ 187 Pa. Super. Page 18]

OPINION BY ERVIN, J.

The only issue presented in this appeal is whether plaintiff's threat to breach its contract with the defendant, if defendant did not sign the release absolving it "from responsibility of delaying the contract on the subject job," constituted duress.

Plaintiff alleged in its complaint that the defendant, a general contractor, and it entered into a written contract providing that the plaintiff was to do roofing work on a specified building being erected by defendant; that plaintiff completed the work in a satisfactory manner in accordance with specifications and that there was still due under the contract the sum of $4,166.40. In his answer defendant admitted all the

[ 187 Pa. Super. Page 19]

    allegations of the complaint but alleged by way of counterclaim that plaintiff delayed in performing the contract, thereby causing damages to defendant in the sum of $5,053.14, and that plaintiff was indebted to him in the sum of $80.00 for labor which he furnished plaintiff. Plaintiff then filed a reply admitting that it owed defendant $80.00 but denying any liability to defendant for any delay in performance. Plaintiff alleged in new matter that defendant released plaintiff from liability for the delay. A copy of the written release was attached to plaintiff's reply. Defendant then filed a counter-reply alleging as new matter that he signed the release under duress, since plaintiff told defendant that if he did not sign the release, it (plaintiff) would not perform its part of the contract. Plaintiff then filed preliminary objections in the nature of a demurrer to defendant's counter-reply and new matter. The court below entered judgment for the plaintiff for the amount of its claim, less the $80.00 which plaintiff admitted that it owed to defendant. The defendant alleged that the release was signed by him because plaintiff "presented the same to the defendant for the defendant's signature with the threat and statement that unless the defendant signed said writing, the plaintiff would do nothing about the installation of the roof as it had agreed to do nor would it do anything about carrying out its obligations to the defendant under its contract with the defendant."

In Restatement, Contracts, ยง 493, it is stated in subsection (e) that duress may be exercised by "any other wrongful acts that compel a person to manifest apparent assent to a transaction without his volition or cause such fear as to preclude him from exercising free will and judgment in entering into a transaction."

A threatened breach of contract ordinarily is not in itself coercive but if failure ...


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