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J. R. CHRIST CONSTRUCTION CO. v. OLEVSKY (07/24/67)

decided: July 24, 1967.

J. R. CHRIST CONSTRUCTION CO., INC.
v.
OLEVSKY, APPELLANT



Appeals from judgment of Court of Common Pleas of Chester County, Nov. T., 1962, No. 79, in case of J. R. Christ Construction Co., Inc. v. Frank Olevsky and Lillian Olevsky, his wife.

COUNSEL

Leonard M. Sagot, with him Ettinger, Poserina, Silverman and Sagot, for appellants.

William H. Yohn, Jr., with him C. Edmund Wells, and Wells, Campbell, Reynier & Yohn, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones concurs in the result. Mr. Justice Roberts dissents and would reverse the judgment as to wife-appellant. Mr. Justice Musmanno took no part in the consideration or decision of this case.

Author: O'brien

[ 426 Pa. Page 344]

Appellee, J. R. Christ Construction Co., Inc. (Christ), filed a complaint in assumpsit on November 26, 1962, alleging that Frank Olevsky and Lillian Olevsky (husband and wife), appellants, were indebted to him in the amount of $8,902 (original claim of $10,902 less $2,000 paid on account), together with interest from May 19, 1962. The debt arose from the rental of heavy duty equipment used for grading and excavation work done on a farm owned by the Olevskys in Chester County. The court below, after a non-jury trial, found that the appellants, Frank and Lillian Olevsky, were liable to the appellee, Christ, in the sum of $8,902.01 plus interest from May 23, 1962, to July 12, 1965, in the sum of $1,671.31, or a total sum of $10,573.32. This appeal followed the entry of judgment against appellants.

In 1962, appellants were owners as tenants by the entireties of a certain farm known as the Double OO farm, located in West Goshen Township, Chester County. The husband, wife, and daughter all had a mutual

[ 426 Pa. Page 345]

    interest in riding horses and used the farm for that purpose, both prior to and subsequent to the construction work involved in this litigation. Early in 1962, James R. Christ, President of the Christ Construction Company, appellee, conducted negotiations on behalf of the appellee at the farm site with the husband, concerning the best method of performing certain work in order to construct a riding ring for horses. On March 12, 1962, an oral contract was concluded whereby appellee supplied appellants with certain heavy equipment and operators on a time rental basis. The equipment and operators were to be directed and controlled on the job by an employee of appellants. The equipment and operators were supplied to appellants as requested between March 19, 1962, and May 19, 1962, and the improvements were made at that time to the Olevsky farm.

Following the filing by appellee on November 26, 1962, of the complaint in assumpsit, appellants filed an answer, alleging that the contract was actually with one Sol Nitzberg, and not with appellants, or, in the alternative, that the charges were excessive and the work had not been done in a proper manner. On March 24, 1964, an amended answer was filed by appellants, stating that the contract was not with Nitzberg, but rather, with Prestressed Structures, Inc., a Pennsylvania Corporation, but that, in any event, the charges were excessive and the work had not been done in a proper manner. Pursuant to stipulation, the case was tried by a judge without a jury, and on July 12, 1965, the trial judge, not having the benefit of the record of testimony, filed his decision in favor of appellee against the husband alone, for the entire balance due under the oral contract, with interest, and absolved the wife from liability. The husband-appellant filed exceptions to the trial judge's findings that: (1) a contract was entered into with the husband; (2) that the work was

[ 426 Pa. Page 346]

    performed in accordance with the husband's agent's instructions; (3) that the husband paid moneys on account of the contract; and (4) that the husband-appellant, is liable to the appellee. The appellee filed exceptions to all of the findings and conclusions of the trial judge, who reconsidered the matter in the light of the arguments and briefs submitted by the respective parties, and the record of testimony. The trial judge found as fact that Christ, president of the appellee Corporation, was introduced by one Nitzberg to the appellant-husband, when the latter discussed his intention of doing some work on the farm. The parties drove to the farm and looked it over briefly. In February, Christ and his equipment operator, Ferguson, met Nitzberg and Olevsky and drove to appellants' farm where Christ was introduced to appellant's wife and daughter. It was at this time that Christ and Olevsky looked over the property and discussed the anticipated construction. Olevsky told Christ that he owned the farm but did not mention his wife or her ownership and interest in it. About two weeks later, Christ and Ferguson met appellant-husband at the farm to further discuss the work and its cost. Neither Olevsky's wife nor Nitzberg were present at that time. Thereafter, on March 12, 1962, Olevsky, by telephone, notified appellee's office that he desired the work to begin immediately. Subsequent conversations were held concerning the commencement of work and machinery, and the work was started on March 19. The trial judge found that in none of these ...


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