Appeal, No. 22, Feb. T., 1962, from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1959, No. 1917, in case of Herman J. Leist v. Thomas J. Schattie, trading and doing business as Checker Cab Company. Judgment affirmed.
George I. Puhak, with him Andrew I. Puhak, for appellant.
Louis George Feldmann, with him Richard A. Kane, for appellee.
Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).
[ 197 Pa. Super. Page 457]
This is an appeal from the refusal to grant defendant-appellant a new trial in an assumpsit action arising out of a written agreement between him and Herman J. Leist, the appellee, for the sale of appellee's taxi business, the Checker Cab Company, to the appellant. The sale was conditioned upon its approval by the Public Utility Commission. The agreed consideration was $13,000, and the business included, inter alia, four
[ 197 Pa. Super. Page 458]
Plymouth cabs and one Checker cab. The parties agreed further that until the transfer received the approval of the Public Utility Commission the business should be operated under the direct management of the purchaser, upon the following conditions, viz.:
"It is agreed that if any profits be made in the operation of the said Hazleton Checker Cab Company during the pendency of such application and until the same shall be formally transferred, then such profits shall enure to the benefit of the said Thomas J. Schattie and it is further agreed that if any losses shall be sustained then the said Thomas J. Schattie shall sustain the same in full."
On May 15, 1959, the aforementioned Checker cab was damaged in an accident involving a car owned by a William Sacckette.
On June 1, 1959, the Pennsylvania Public Utility Commission approved the transfer of the certificate to the appellant to operate the taxi business. Thereupon appellee was tendered and received the balance of money due him less $3,000, which appellant withheld for reimbursement for loss of the cab. Appellee insisted upon payment of the $3,000 plus insurance premiums, rent, etc., accrued to June 1, 1959, and paid by him.
On August 6, 1959, appellee entered suit against William Sacckette, claiming damages in the sum of $1,850 for the demolition of the Checker cab; and on August 26, 1959, the appellee entered the present suit for the ...