admitted lack of knowledge of the chain saw industry; his lack of knowledge of the scheme of distribution of this defendant and of the fact that he was never an account executive for a chain saw manufacturer (N.T. 393-394).
Mr. Morgan testified that he has been in the advertising business for 36 years, 28 of which were spent with advertising agencies. He also testified that he has done both copy and layout work for advertising agencies and that for the past six or seven years he has been responsible for all the creative activities of the Richard A. Foley Advertising Agency of Philadelphia of which he is a part owner (N.T. 387-388). He further testified that the problems he has handled were similar to the ones he heard Mr. Signor and Mr. Strunk describe from the witness stand (N.T. 395). The attorney for the defendant did not object to the testimony of Mr. Morgan and in fact stipulated that Mr. Morgan would testify that in his opinion the charges made were fair and reasonable (N.T. 392).
On the basis of the above recited facts the Court concludes that Mr. Morgan was competent to testify as to the reasonableness of the charges made by the plaintiff.
Finally, the defendant failed to produce any evidence, other than from Mr. Strunk, that the work done by the plaintiff failed to meet commercially accepted advertising standards. The Court finds that the work done by the plaintiff did meet commercially accepted advertising standards.
This aspect of the case requires little discussion. The defendant produced no evidence of any damage to it by reason of its failure to have a sales presentation book for the 1955 selling season or that the plaintiff in any way caused the defendant to be damaged. The only evidence presented by the defendant on this question was Mr. Strunk's statement that he felt that his sales suffered during the 1955 season because of the lack of this sales presentation book. Obviously, this is not sufficient to support the defendant's counterclaim.
Conclusions of Law
1. The Court has jurisdiction of the parties and the subject matter of this action.
2. Plaintiff provided advertising services to the defendant pursuant to a written contract between the parties dated April 29, 1955, as supplemented by a letter of the same date.
3. From on or about May 10, 1955 to October 5, 1955, the provision of the original contract of April 29, 1955, requiring plaintiff to submit job cost estimates for defendant's approval was modified by the conduct of the parties so that the submission and approval of such an estimate was not a condition precedent to defendant's obligation to pay for plaintiff's services.
4. The plaintiff is entitled to recover the fair and reasonable value of the services rendered by it on Counts One, Two, Three, Four and Five.
5. The fair and reasonable value of said services is $ 2,072.77.
6. The plaintiff is not entitled to recover for services rendered on Count Six since the defendant never requested the material prepared by the plaintiff and never accepted it after it was prepared.
7. Mr. Robert Arndt's letter of January 12, 1956 to Mr. Leonard M. Strunk and Mr. Strunk's reply of January 16, 1956, constituted a separate written contract supplementing the original agreement of April 29, 1955.
8. Plaintiff is entitled to recover under this supplemental agreement the fair and reasonable value of the services rendered by it on Counts Seven and Eight.
9. The fair and reasonable value of said services is $ 754.94.
10. The conference of October 5, 1955, Mr. Leonard Strunk's letter of January 3, 1956 to Mr. John Arndt, and Mr. Arndt's reply of January 6, 1956, resulted in the reinstatement of the requirement of the original contract of April 29, 1955, that job cost estimates be submitted to the defendant for its approval.
11. Defendant's approval and acceptance of the material prepared by the plaintiff on Count Nine resulted in a second waiver of the requirement that cost estimates be submitted for defendant's approval so that the submission and approval of such an estimate was not a condition precedent to defendant's obligation to pay for these services.
12. Plaintiff is entitled to recover the fair and reasonable value of the services rendered by it on Count Nine.
13. The fair and reasonable value of said services is $ 418.83.
14. All of the work done by the plaintiff in connection with each of these Nine Counts was in accordance with commercially acceptable advertising standards.
15. Plaintiff's right of recovery is not conditioned upon defendant's use of, or receipt of benefits from the material requested by the defendant. Kastor & Sons Adv. Co. v. Grove Laboratories, D.C.E.D.Mo.1945, 58 F.Supp. 1011, 1016; 5 Corbin, Contracts Section 1107 and Restatement, Contracts Section 348 and comments thereto.
16. Mr. John Signor and Mr. Albert Morgan were competent to testify to the fair and reasonable value of the services rendered by the plaintiff to the defendant on each of these Nine Counts.
17. Paragraph II k of the original contract of April 29, 1955, is not applicable to this case.
18. The plaintiff is entitled to judgment against the defendant in the sum of $ 3,246.54 with interest at the rate of 6% from May 1, 1956.
19. The plaintiff is entitled to judgment in its favor on defendant's counterclaim.
Each of the parties has submitted requests for findings of fact and conclusions of law. To the extent that they are consistent with the above findings and conclusions they are affirmed. To the extent that they are inconsistent with the above findings and conclusions they are denied with an exception. Accordingly, a formal order will be entered.
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