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CLEMENT MARTIN v. GUSSEY (12/17/59)

December 17, 1959

CLEMENT MARTIN, INC.
v.
GUSSEY, APPELLANT.



Appeal, No. 100, April T., 1959, from order of Court of Common Pleas of Allegheny County, July T., 1956, No. 2784, in case of Clement Martin, Inc. v. Thomas Gussey, trading and doing business as Thos. Gussey Floor Contracting Company. Order reversed; reargument refused February 5, 1960.

COUNSEL

Franklyn E. Conflenti, for appellant.

Edward J. Martin, with him Goehring, McWhinney & Grubbs, for appellee.

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

Author: Gunther

[ 191 Pa. Super. Page 466]

OPINION BY GUNTHER, J.

This appeal is from the granting of a judgment n.o.v. after a verdict was returned in favor of the defendant. Clement Martin, Inc., a corporation, brought suit in assumpsit against Thomas Gussey, trading and doing business as Thos. Gussey Floor Contracting Company, appellant, to recover damages in the sum of $3,600.00 for an alleged breach of contract.

Early in 1954, the School District of Mt. Lebanon, in Allegheny County, requested bids for an addition to its high school. Clement Martin, Inc., being desirous of obtaining this work, requested bids from certain subcontractors for wood and resilient floor tiling and other items. One of the bids for this specific work was received from appellant who proposed to do both types of flooring work for the sum of $38,300.00. This proposal was submitted orally the same day the bid for the overall work was submitted by appellee and was used by it in the computation of price. Shortly thereafter, Clement Martin, Inc., was awarded the job as low bidder.

On July 7, 1954, appellant submitted his proposal for the wood and resilient floor work in writing, in which the resilient flooring was quoted at $17,400.00 and the wood flooring at $20,000.00 as unit prices. This proposal stated: "The separate phases of work quoted under unit amounts are for your information only. An agreement shall not be acceptable that reduces the quantity of work, to be performed, or the total lump sum of this proposal." After the proposal was submitted and received, Clement Martin, Inc., submitted appellant as a proposed subcontractor to the architects supervising the construction for approval. On August 19, 1954, the appellee was informed that appellant had been rejected as a subcontractor but this information was not conveyed to appellant by either the architects or appellee. Nevertheless, on November 2, 1954, appellee

[ 191 Pa. Super. Page 467]

    entered into a written contract with appellant, wherein appellant agreed to furnish all labor, material and equipment necessary to furnish and install all resilient flooring on said job for the sum of $17,400.00. Subsequently, appellee prevailed upon the architects to accept appellant as a subcontractor. This, too, was without the knowledge of appellant.

Appellant testified that at the time this contract was entered into, appellee informed him that the wood flooring contract was also his as appellant was the low bidder on both types of flooring, and that as soon as the contract could be prepared, he could sign it. He was informed that the office procedure of appellee required separate contracts. Appellant stated that he continually inquired about the wood flooring contract but it was not until the spring of 1955 that he discovered that this contract was awarded to another subcontractor back in December, 1954.

Several letters were written by appellee to appellant to submit samples of the materials to be used but appellant refused to submit them. In May, 1955, appellant was advised to proceed with the work and, having failed to do so, on July 18, 1955, he was informed that, because of his refusal to proceed, the appellee would obtain another subcontractor. Appellee then entered into a contract for this work with another contractor for the sum of $21,000.00, and ...


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