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FENESTRA INCORPORATED v. JOHN MCSHAIN (01/15/69)

decided: January 15, 1969.

FENESTRA INCORPORATED, APPELLANT,
v.
JOHN MCSHAIN, INC.



Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1961, No. 5541, in case of Fenestra Incorporated v. John McShain, Inc.

COUNSEL

Joseph J. Brown, with him Ralph S. Croskey, and Brown, Brown & Wieland, for appellant.

Harold E. Kohn, with him David Pittinsky, Vincent P. McDevitt, and Dilworth, Paxson, Kalish, Kohn & Levy, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 433 Pa. Page 138]

This is an appeal from the judgment entered after a verdict in the Court of Common Pleas No. 5 of Philadelphia County. Appellant, Fenestra, Incorporated (Fenestra) brought an action in assumpsit seeking recovery of $19,414.72, the balance of the purchase price due for windows in a building constructed by appellee, John McShain, Inc. (McShain). Appellee admitted the allegations of the complaint, but counterclaimed for the sum of $32,023.19. This counterclaim was based on an alleged contract between appellant and appellee's assignor, John McShain, Inc., of Maryland (McShain of Maryland) whereby appellant, as a subcontractor, was to furnish and install metal windows in the Calverton Junior High School, Baltimore, Maryland. Fenestra claimed that it never entered into the contract involved in the counterclaim. The court below, sitting without a jury, held in an order dated March 4, 1968, that the parties had indeed entered into a contract, and found for McShain on the counterclaim. The difference between the claim and the counterclaim, both with interest, amounted to a verdict in favor of McShain in the sum of $18,637.20. After exceptions were dismissed by the court en banc, judgment was entered and this appeal followed.

It is undisputed that the parties never signed a written agreement. McShain, however, relies on an oral agreement of July 25, 1960 as creating the contract. Fenestra contends that this was merely a preliminary agreement limited to the subcontract price of $78,400, it being intended by the parties that the preliminary agreement should be confirmed by a written

[ 433 Pa. Page 139]

    contract specifying all the terms and conditions. The court below found that the intention of the parties was to be bound by the oral contract of July 25, 1960. It is hornbook law that the findings of a chancellor or a court sitting without a jury, if affirmed by a court en banc, have the force of a jury verdict and will not be overturned, absent an error of law, if there is evidence to support them.

Surely the evidence supports the findings of the court. It is well settled that the actions of the parties pursuant to the contract are significant and substantial evidence of their intention. Fenestra urges that we consider conclusive the fact that on July 29, 1960, four days after the date of the alleged oral contract, Fenestra submitted upon its printed proposal form a list of terms and conditions upon which it proposed to furnish the windows in controversy; that the July 29th proposals were not signed by McShain; that McShain on August 18, 1960 submitted to Fenestra and Metal Construction Services Corporation*fn1 its printed purchase orders, with some terms differing from those set forth in Fenestra's proposals of July 29th, which purchase orders were never signed either.

However, this exchange of written contracts is in itself inconclusive as to whether the parties intended to be bound by the oral contract. McShain's representative at the July 25th meeting testified that the July 25th meeting was a culmination of negotiations, that it was understood that the terms and specifications of the main contract were applicable to this subcontract, and that McShain's purchase orders were to be merely "a record of the transaction", a "writing confirming

[ 433 Pa. Page 140]

    the verbal transaction." The testimony in itself would have been ...


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