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NEILAN v. DENISE COAL COMPANY (06/11/58)

June 11, 1958

NEILAN
v.
DENISE COAL COMPANY, APPELLANT.



Appeal, No. 194, April T., 1957, from judgment of Court of Common Pleas of Somerset County, No. 1151 C.D. 1956, in case of F. G. Neilan et al. v. Denise Coal Company. Judgment affirmed.

COUNSEL

Robert E. Walsh, with him Archibald M. Matthews, and Suto, Power, Goldstein & Walsh, for appellant.

Alexander Ogle, for appellees.

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

Author: Watkins

[ 186 Pa. Super. Page 496]

OPINION BY WATKINS, J.

This is an action in assumpsit upon an oral contract for engineering services. The jury rendered a verdict in favor of the plaintiff appellee in the amount of $865.70. The court below denied a motion for a new trial and this appeal followed.

There is no dispute as to the value of the services or the fact that they were rendered. Nor is there substantial dispute that they were rendered at the request and with the consent of the appellant coal company, which company, in fact received and accepted them.

The nature of the services consisted of conducting screen tests, sieve analysis and preparing a layout or preliminary design for coal cleaning apparatus. The dispute arose as to whether the said services were rendered in accordance with an agreement between the three Neilan brothers, trading as Neilan Engineers, the plaintiff appellees, and the Denise Coal Company, the appellant, under circumstances by which payment was due from the appellant to the appellees or whether, as alleged by the appellant, the arrangements for the services had been made by F. G. Neilan, father of the

[ 186 Pa. Super. Page 497]

    appellees and President and General Manager of the Black Beauty Coal Company, and under which version no payment was to be made by the appellant company.

The appellant's brief states the problem simply: "The testimony of the witnesses for the respective parties is diametrically opposed as to the existence of the alleged contract". This, then, certainly presented a question of fact for the jury which, by its verdict, accepted the version of the appellees.

The court below pointed out that the "record is barren of a single exception or objection to the charge by the court as a whole or to any specific portions of the charge", yet the reasons advanced in the motion for a ...


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