Appeal, No. 445, Oct. T., 1959, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1956, No. 1297, in case of Keller & Voelker, Incorporated v. Kellett Aircraft Corporation. Judgment affirmed.
Warren W. Holmes, with him Zink, Shinehouse & Holmes, for appellant.
George P. Williams, III, with him Orr, Williams & Baxter, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 192 Pa. Super. Page 27]
This is an action in assumpsit by plaintiff, Keller & Voelker, Incorporated, to recover from the defendant, Kellett Aircraft Corporation, fees for the preparation of certain preliminary plans and final plans and specifications and the cost of certain test borings, relating to a factory and office building proposed to be erected by the City of Philadelphia and the Philadelphia Airports Improvement Authority at the North Philadelphia Airport and to be occupied by defendant as a lessee of the City. The case was tried before President Judge FRANCIS SHUNK BROWN, JR., sitting without a jury. The plaintiff's claim was for $19,415.00. The court below, by a court in banc, after dismissing plaintiff's exceptions, entered judgment for the plaintiff against the defendant in the sum of $1,000.00. The plaintiff appealed. The facts are as follows:
On June 6, 1955 plaintiff and defendant, through their representatives, discussed the possibility of having a new manufacturing plant constructed for defendant. Plaintiff was informed by defendant about its financial situation, and that it would be essential that financing be obtained. Subsequently, defendant approached The Philadelphia Airports Improvement Authority in connection with the erection of the plant at the Northeast Airport in Philadelphia and the undertaking of the construction by the Authority. It was necessary that drawings be made in order to inform the Authority of the requirements that defendant anticipated. As a result of discussions between the parties, an agreement was made by them as set forth in a letter written by plaintiff and approved by defendant. That letter, dated June 30, 1955, stated that "We... are proceeding with preliminary studies even though our [plaintiff's] contract with the City of Philadelphia will require the normal two or three weeks before it is finalized.
[ 192 Pa. Super. Page 28]
"Although we anticipate no difficulties or delays in the signing of the contract, we feel that as a matter of good business practice we should be partially protected for the work we are now doing should the City decide not to proceed, which is most unlikely.
"We therefore suggest that should such an unlikely situation develop, you will then compensate us for work that we have done at the rate of one-half the normal per diem fee..., but not to exceed $1000. in any event.
"If this is agreeable to you, we would appreciate your initialing one copy of this letter and returning it to us."
On July 5, 1955 Mr. Keller, plaintiff's president, sent a letter to Mr. Inwood, in his capacity as executive director of the Authority, wherein plaintiff proposed to "supply architectural and engineering services" to the Authority for a fee of 7 1/4% and after a meeting with Mr. Inwood attended by him and by Mr. Voelker at which Mr. Inwood stated that 6% was the Iargest fee acceptable to the Authority, Mr. Keller wrote Mr. Inwood again, reducing the fee to the Authority to the permissible maximum of 6%. Thereafter, on a date not definitely established, plaintiff executed and delivered to the Authority a formal contract in which it agreed to render "to the Authority all of the architectural and engineering services necessary or proper to the construction of..." the proposed plant for a fee of 6% of the cost of construction. This agreement was never signed by the Authority. The plans and specifications prepared by plaintiff carried the ...