Appeal from decree of Orphans' Court of Montgomery County, No. 63,157, in re estate of Edward Hilary Reuss, deceased.
Roland J. Christy, with him Albert A. Ciardi, Jr., for appellant.
James S. Kilpatrick, Jr., with him Thomas J. Burke and E. C. Kirk Hall, for appellees.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts concurs in the result.
This appeal attacks the validity of a decree of the Orphans' Court of Montgomery County which dismissed
a claim for engineering services against a decedent's estate.
Edward H. Reuss, Jr., [decedent], died on May 4, 1959. At the audit of his estate, Nicholas Iovacchini, Jr., [claimant], a professional engineer, presented a claim in the amount of $8365 for engineering services against the decedent's estate. At the suggestion of the court and in accordance with the local rules of that court, claimant filed a statement of claim which outlined the basis of his claim. That statement of claim, inter alia, averred that claimant, as a professional engineer, on July 25, 1953, made a "written proposal" to decedent which stated: "I agree to do the structural steel and concrete design work including preparation of all necessary drawings on the above proposed building (Proposed Office Bldg., 10 Union Avenue, Bala-Cynwyd, Pa.) for the sum of five dollars ($5.00) per hour; that on July 27, 1953, the decedent wrote claimant: "I accept your proposal of July 25, 1953 to do the structural steel and concrete design work including preparation of necessary drawings for my proposed office and warehouse building 10 Union Avenue, Bala-Cynwyd, Pa.";*fn1 that claimant did render the required services and did render a bill on June 7, 1954, to decedent for $400 (80 hours at $5 per hour) which decedent paid; that claimant continued to render services and, on February 4, 1959, rendered a statement to decedent for $8365 (1673 hours at $5 per hour) which bill has not been paid; that the "charge . . . is in accordance with the contract between the claimant and the decedent, and is also the fair and reasonable value of said services."*fn2
Initially, it must be noted from an examination of this statement of claim that: (a) claimant's letter of July 25, 1953, contained no limitation upon the number of hours claimant was to perform engineering services nor no provision for the time or times when claimant was to be paid; (b) claimant performed services for over four and one-half years, after rendering the initial bill for $400, without any demand upon decedent for payment; (c) the claim is squarely based upon an express contract, i.e., the proposal contained in the letter of July 25 and the acceptance contained in the letter of July 27, and not upon quantum meruit.*fn3
The court below referred the claim to a master. The master held hearings at which only the claimant presented testimony and, upon the completion of said hearings, the master recommended dismissal of the claim; the court, accepting such recommendation, dismissed the claim.
The claimant, disqualified to testify under the "Dead Man's Rule" (Act of May 23, 1887, P. L. 158, § 5, cl. (e), 28 P.S. § 322),*fn4 was forced to rely upon testimony other than his own. Initially, claimant took the position that, since admittedly decedent signed the letter of July 27, such letter constituted an acceptance of the offer contained in the letter of July 25. In his report, the master stated: "To sustain his ...