Appeal, No. 291, April T., 1962, from order of Court of Common Pleas of Washington County, May T., 1960, No. 763, in case of Joe Rizzi v. The American Russian Political & Beneficial Club. Order affirmed.
Melvin B. Bassi, for appellant.
Paul N. Barna, with him Barna and Barna, for appellee.
Before Rhodes, P. J., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).
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OPINION BY MONTGOMERY, J.
This is an appeal from an order refusing to remove a compulsory non-suit entered in an action of assumpsit. Appellee, a nonprofit corporation, had a general construction contract with S.E.T. Corporation for the erection of a building. Appellant, as a subcontractor, agreed with S.E.T. Corporation to perform part of the work for $5,200, which agreement provided for partial payments as the work progressed. S.E.T., being insolvent at the time, defaulted on the second payment of $2,000 ($2,125 had been paid previously), and appellant stopped work for that reason. However, at this time most of the work had been completed. All that remained to be done was to polish the terrazzo floors which had been laid by appellant. This would have required three or four days work by five men at a cost to appellant of $300 to $400.
Appellant's claim against appellee is based on the following conversations (interpreting the evidence in appellant's favor), viz.: Immediately following the default by S.E.T., appellant notified appellee's President Kovalik of same and of his intention to stop work; at that time the president told appellant they were holding $12,000 of S.E.T. money and that everyone would get paid. Two months later President Kovalik and his brother, who was also an officer, came to
[ 200 Pa. Super. Page 66]
appellant's home and asked him to finish the work, promising that "... we get you full check; all the contract will be paid", and, "You come finish the job and we pay you the full bill, what you got coming, as soon as you finish". At that time appellant was asked to supply and install a piece of slate on a riser along the bar, which had not been included in the contract. Appellant's corroborating witness testified to the last conversation, repeating the words of the president as "... the work needed to be completed because they expected some equipment to arrive and the floors needed to be finished, and payment would be made by the club."
Appellant completed the work, purchased the slate at a cost of $92.50 and delivered it, but was prevented by appellee from installing it.
The lower court nonsuited appellant because it considered the evidence insufficient to establish a new contract between appellant and appellee other than one to guarantee the payments due appellant from S.E.T. Corporation, which, not being in writing, was unenforceable under the Statute of Frauds; and further, because it disclosed no authority from the corporation to the president or his brother to negotiate such a contract.
Giving our attention first to the second reason, we fail to find in the record any participation in the negotiations with appellant by anyone on behalf of the appellee except its President Kovalik and his brother. Appellant's counsel argues that its directors participated, but there is no evidence to support this position. Kovalik's brother, described as secretary or treasurer, was the only identified other person present at any of the ...