Appeal, No. 188, Oct. T., 1961, from order of Municipal Court of Philadelphia County, July T., 1959, No. 852, in case of Norman E. Conard v. Thomas J. Duffy et ux. Order affirmed.
Joseph R. Siegert, for appellant.
Richard I. Torpey, with him Martin Techner, and Techner, Rubin & Shapiro, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
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On July 9, 1959, Norman E. Conard instituted an action in assumpist against Thomas J. Duffy and Elecanor H. Duffy, his wife, upon a written instrument executed by the defendants as follows: "Jan. 23rd 1958 - I O U Norman E. Conard, Four Thousand Dollars ($4000.00). This is to be repaid at $100.00 per month". The defense was failure of consideration. The trial resulted in a verdict for the plaintiff in the face amount of the instrument. The court en banc thereafter granted defendants' motion for a new trial on the ground that the verdict was against the weight of the evidence. The plaintiff has appealed.
The record discloses that Thomas J. Duffy operated a business at 825 Garrett Road, Upper Darby, Pennsylvania, trading under the fictitious name of Edward A. Duffy and Son. The nature of the business was the sale and installation of window shades, venetian blinds, and floor coverings. For some twelve years prior to January 23, 1958, Conard was employed in the business at a weekly salary, first of $40,00 and later $50,00. Conard testified that he was in fact a salesman and was to receive, in addition to his salary, a commission of ten percent on all venetian blind orders and five percent on all linoleum orders. The theory of the defendants was that Conard was not employed as a salesman, that his compensation was limited to his weekly salary, and that there were to be no commissions. The business eventually became financially involved. Sometime in the year 1957, when internal revenue agents were preparing to make a levy for nonpayment of federal taxes, Conard loaned Duffy $900.00. This indebtedness was evidenced by a judgment note, the final payment on which was made November 22, 1957. With regard to the I.O.U., the subject matter of the instant action, Conard testified that it was a compromise in settlement of commissions due. Duffy
[ 196 Pa. Super. Page 258]
testified to the contrary that, on January 22, 1958, Sheriff's deputies were in the process of making two levies, that Conard voluntarily offered to arrange a loan up to $4000.00, that the I.O.U. was executed at Conard's direction so that he (Conard) could show it to his bank, that Conard failed to get the money from the bank, and later tried without success to get the money from relatives in Atlantic City. Duffy's theory was supported by a number of exhibits, and his testimony was substantiated in material aspects by the testimony of Earl J. Plowman, a fellow employe of Conard, and also by the testimony of Eleanor Duffy. Aside from the written instrument, Conard's case rested entirely upon his own testimony.
In his opinion for the court en banc the trial judge states that "he and the other members of the court en banc concluded that the verdict was against the weight of the evidence, was shocking to the judicial conscience, and must have been capricious". Then follow a painstaking outline of the reasons for such a conclusion, which we will briefly summarize. (1) It is highly improbable that Conard was to receive commissions in view of his admission that he did not request payment thereof for a period of ten years, that he kept no account, and was not certain of the amount. (2) While Duffy was engaged with the sheriff's deputies, Conard handed him a card on which he had written "up to $4000". In the words of Judge PIEKARSKI, "Were it for any agreed compromise, the words 'up to' would have been omitted. Indeed, the card itself would have been completely meaningless had there been the alleged compromise". (3) The variance between Conard's testimony and his complaint. For example, his testimony differed from his complaint on the percentage of commissions. Again, Conard alleged in his complaint that a consideration for the I.O.U. was "that he would not voluntarily leave his employment with defendant",
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whereas his employment was admittedly being terminated by the closing down of the business. Further Conard testified that the compromise covered vacation pay, on which matter the complaint is entirely silent.(4) The testimony of Earl J. Plowman and Eleanor Duffy which, in the light of the sharp conflict in the testimony of the principals, led the court en banc to conclude "that the fair preponderance of the weight of plaintiff's testimony was not only impaired in comparison with defendants' testimony, ...