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HERRE BROS. v. RHOADS (09/15/66)

decided: September 15, 1966.

HERRE BROS., INC., APPELLANT,
v.
RHOADS



Appeal from judgment of Court of Common Pleas of York County, May T., 1964, No. 473, in case of Herre Bros., Inc. v. Ernest E. Rhoads.

COUNSEL

Daniel W. Shoemaker, with him Allen H. Smith, for appellant.

Lavere C. Senft, with him Liverant, Senft and Cohen, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 208 Pa. Super. Page 358]

Plaintiff-appellant recovered a judgment of $8,351.12 in an action of assumpsit based on three claims: (a) under a written contract for the construction of a

[ 208 Pa. Super. Page 359]

    restaurant building; (b) a supplemental written contract for the furnishing of restaurant fixtures and kitchen equipment; (c) an oral agreement for additional restaurant fixtures and kitchen equipment. The jury allowed a recovery on each count, although in an amount which was less than plaintiff claimed. The jury also allowed the defendant-appellee the sum of $12,316.13 with costs on a counterclaim. The costs were awarded because the net amount of the awards was $3,965.01 in defendant's favor. Plaintiff's motion for a new trial, and defendant's motions for a new trial and for judgment n.o.v. having been overruled, judgments were entered in the sums of $8,351.12 for plaintiff and $12,316.13 plus costs for defendant. This appeal by plaintiff followed.

The issues to be decided by us relate only to the written contracts and not to the oral one which, plaintiff contended, contemplated specific charges for the items plaintiff furnished. Although defendant denied that the items furnished under the oral contract were to be charged at definite prices and alleged a "cost plus" basis for said items, the jury's verdict, in allowing the claim for the total of the specific charges, justifies the conclusion that it rejected defendant's contention that said contract was on a "cost plus" basis and accepted plaintiff's view of the contract.

The original contract, prepared by defendant's counsel, provided that the contractor (plaintiff), ". . . shall furnish all of the material and perform all of the work . . .", and that the owner (defendant) ". . . shall pay to the Contractor . . . the actual cost to the Contractor of all labor, materials and other proper charges as hereinafter specified, plus twelve (12%) per cent overhead plus five (5%) per cent profit", and that "It is understood and agreed that there shall be no charge for office supervision, purchasing and accounting." (Emphasis supplied)

[ 208 Pa. Super. Page 360]

Further provisions provided that the owner would make payments on account during the progress of the work upon billings submitted by the contractor monthly, which billings were to be based on the percentage of work completed and materials placed on the job site by the last day of the preceding calendar month and were to show in detail as completely as possible all money paid by the contractor during the previous months, including labor, payrolls and all receipted bills. Plaintiff's offer to prove the submission of said monthly statements and that they included the items in dispute was refused by the trial court.

The contract also required the contractor to comply with all laws and regulations bearing on the conduct of the work, be responsible for any damage or injury to adjacent property and the public, maintain such insurance as will protect it from claims under Workmen's Compensation Acts and from any other claims for damages for personal injury, with a provision therein for the protection also of the owner from such claims. It further provided that the contractor must carry fire insurance upon the structure and ...


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