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SMITH v. PEACOCK CONSTRUCTION COMPANY (06/13/69)

decided: June 13, 1969.

SMITH, APPELLANT,
v.
PEACOCK CONSTRUCTION COMPANY



Appeal from judgment of Court of Common Pleas of Washington County, Sept. T., 1963, No. 168, in case of M. W. Smith v. Peacock Construction Company.

COUNSEL

Robert L. Ceisler, with him Patrono, Ceisler & Edwards, for appellant.

William C. Porter, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J. Wright, P. J., would affirm the judgment below.

Author: Montgomery

[ 214 Pa. Super. Page 325]

Appellant initiated this action by issuing a writ of foreign attachment based on a claim in assumpsit against appellee, Peacock Construction Company, a foreign business corporation, incorporated under the laws of the State of Georgia. Appellant originally claimed $37,709.60 with interest, but by an amendment to his complaint this was raised to $44,421.09. Appellee denied the claim and asserted a counterclaim of approximately $15,000. The case was tried before Hon. Charles G. Sweet, President Judge, without a jury, and a decision was rendered in appellant's favor for $1,846.81 with interest. Appellant's motion for a new trial having been dismissed after argument before a court en banc, and judgment having been entered on the decision, he appealed.

[ 214 Pa. Super. Page 326]

Since the lower court made no specific findings of fact*fn1 or conclusions of law but merely rendered a decision, it now becomes our responsibility on this appeal to review the entire record and attempt to make our own determination of the facts and draw our own conclusions of law based thereon. Yoo Hoo Bottling Company of Pennsylvania, Inc. v. Leibowitz, 432 Pa. 117, 247 A.2d 469 (1968); Idell v. Falcone, 427 Pa. 472, 235 A.2d 394 (1967); Ballinger v. Howell Manufacturing Company, 407 Pa. 319, 180 A.2d 555 (1962).

Our careful review of this record indicates clarity in the basic facts. Plaintiff, with engineering experience and business contacts, entered into an oral contract with the defendant corporation, a construction company, acting through Cassius Peacock, its president, general manager, and 99 per cent stockholder, in June, 1962, to procure construction contracts for the defendant and to supervise the work. The terms of this oral contract are not clear. However, later, in July, 1962, plaintiff and Cassius Peacock each signed an undated paper bearing the heading, "Fort Myers-Naples-Punta Gorda Ready Mixed Concrete, Inc.", on which Mr. Peacock had written the following:

"1. Salary $800.00/month is general company overhead

"2. Smith's expenses are job cost

"3. Company overhead charged to jobs is agreed at 4 1/2% of job cost

"4. Job selling price, less job cost plus 4 1/2% overhead on job ...


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