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MONTGOMERY v. LEVY. (03/13/62)

March 13, 1962

MONTGOMERY, APPELLANT,
v.
LEVY.



Appeal, No. 142, Jan. T., 1962, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1961, No. 2277, in case of Joseph W. Montgomery, trading as Montgomery Construction Company v. Abraham Levy. Judgment affirmed.

COUNSEL

Robert H. Arronson, with him Herbert H. Hadra and Maurice Freedman, for appellant.

Nochem S. Winnet, with him Franklin A. Wurman, Charles M. Solomon, and Fox, Rothschild, O'Brien & Frankel, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Eagen

[ 406 Pa. Page 548]

OPINION BY MR. JUSTICE EAGEN

This is an appeal from the action of the court below in sustaining preliminary objections in the nature of a demurrer to plaintiff's complaint in an action of assumpsit, and in entering judgment for the defendant.

Plaintiff is a builder; defendant, a registered architect. Plaintiff alleged that he entered into a written contract with the City of Philadelphia to erect and furnish all of the labor and material necessary for a civic auditorium, commonly known as the Dell. Defendant was engaged by the city as the architect to draw the plans and specifications and supervise the erection of the project.

In the plans, as drawn by the defendant, the construction of the soil was described as being decayed mica. In the course of the work, it was discovered that the soil was solid rock which necessitated dynamiting and substantial additional expense.

[ 406 Pa. Page 549]

When this condition was called to defendant's attention, the complaint alleges that he urged the plaintiff to proceed and do what was necessary, assuring him that he was acting on behalf of the city and authorized to give such directions, and the plaintiff would receive proper compensation. Other additional work, not included within the purview of the original plans, was also so authorized by the defendant and carried through by the plaintiff. Subsequently, it was ascertained that the defendant was not authorized to make these promises. Hence, this suit.

The plaintiff previously sued the City of Philadelphia and attempted to collect from the municipality for the same identical additional compensation claimed herein. A demurrer to the complaint was sustained in that action. This Court affirmed on ...


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