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KELLY v. HERRINGTON ET AL. (12/17/59)

December 17, 1959

KELLY
v.
HERRINGTON ET AL., APPELLANTS.



Appeals, No. 177, April T., 1959, and Nos. 23 and 24, April T., 1960, from judgment of Court of Common Pleas of Allegheny County, July T., 1956, No. 1369, in case of Francis J. Kelly v. George R. Herrington et al. Judgment affirmed.

COUNSEL

B. A. Karlowitz, with him Patterson, Crawford, Arensberg & Dunn, for appellants.

Harry Alan Sherman, for appellee.

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

Author: Gunther

[ 191 Pa. Super. Page 362]

OPINION BY GUNTHER, J.

These appeals are from the refusal of a motion for judgment n.o.v. in a trespass action for fraud and deceit.

[ 191 Pa. Super. Page 363]

In March, 1954, a representative of Illinois Continental Machine Corporation approached appellants, George R. Herrington, president, and William J. Gumbert, secretary-adjutant of the Allegheny County Council of Veterans of Foreign Wars of the United States, Incorporated, who proposed a method by which funds could be raised for hospital activities sponsored by the Veterans of Foreign Wars. This arrangement was embodied in an agreement under which the representative of the vending machine company would secure purchasers for candy and gum machines and that these purchasers then would operate such machines at locations obtained by the appellants. The owners-operators of these machines would pay appellants ten percent of the gross income from such machines in return for locations secured by appellants. Previous to any steps taken by the vending machine company representative, this agreement was signed by appellants, George R. Herrington and William J. Gumbert, as the proper officers of Veterans of Foreign Wars. Thereafter, the vending machine company representative, in an effort to find purchasers for these machines, who would also operate them, inserted advertisements in the Pittsburgh papers. Appellee, Francis J. Kelly, responded to this advertisement and met the representative of the vending machine company. He exhibited to him the agreement signed by appellants and, after some persuasion signed an agreement to purchase fifty of these machines on the assurance that they would be placed by appellants in suitable locations.

Not being entirely satisfied with the agreement exhibited to him and signed by appellants, appellee, before paying out any money on this transaction, contacted George R. Herrington and inquired of him whether the contract document exhibited to appellee was, in fact, signed by him and whether the Veterans of Foreign Wars sponsored the vending machine project.

[ 191 Pa. Super. Page 364]

Upon being assured that the signed document was genuine and that appellants were sponsoring the project, appellee drew, on March 18, 1954, a check in the amount of $2,710.44 and gave it to the manufacturer's representative. Subsequent thereto, and before the machines actually arrived, appellee attended several meetings conducted by appellants where he was informed as to the details of the operation and the amount to be paid to appellants. Appellee was also instructed to inform appellants as soon as the machines arrived so that the same might be serviced and placed in the various locations.

On April 18, 1954, an article appeared in one of the Pittsburgh daily papers indicating that the proposed vending machine project was illegal and contrary to the Act of 1925, May 13, P.L. 644, as amended, 10 P.S. sections 141, 151. Thereafter, appellee was informed not to do anything until the provisions of the Act could be complied with. Appellants never did obtain a license for these machines and the project was ...


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