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KENNEDY v. FAUSH (06/11/70)

decided: June 11, 1970.

KENNEDY
v.
FAUSH, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1968, No. 5284D, in case of John J. Kennedy, Jr. v. William B. Faush.

COUNSEL

Ira J. K. Wells, Jr., with him Herbert J. Hutton, for appellant.

Samuel C. Nissenbaum, for appellee.

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

Author: Cercone

[ 217 Pa. Super. Page 13]

John J. Kennedy, Jr., a printer, instituted this action of assumpsit against William B. Faush to recover for printing performed under an alleged oral agreement whereby defendant had agreed that plaintiff would

[ 217 Pa. Super. Page 14]

    print, for $9.00 per page, the official minutes of the April 1967 Delaware Annual Conference of the African Methodist Episcopal Church, First Episcopal District, called the "Church". In addition to being a minister in that Church, defendant worked in a printing plant and it was because of his work in and knowledge of the printing business that the Church delegated to him the task of arranging for the printing of the minutes. Defendant called at plaintiff's place of business on July 10, 1967, showed plaintiff the minutes to be printed and a sample of the printed minutes of a previous meeting, and asked plaintiff for a bid. Plaintiff testified that he worked out his price at that time and told defendant his price would be $9.00 per page. Plaintiff testified the bid was accepted by defendant with the understanding that plaintiff's bill would include an additional charge of 50 cents per page for defendant, which charge defendant testified at trial was approved by the Church as payment for his services in arranging for and proof reading the printing.

Plaintiff testified he proceeded to prepare the proofs in accordance with the above oral agreement and in accordance with the specifications which defendant, in plaintiff's presence, had written on a yellow sheet of work paper. This handwritten specification sheet, which was introduced into evidence, included provisions as to the type and manner of printing and binding and stated that the printing was to be completed by August 2, 1967. Also included was the requirement that proofs be submitted prior to final printing. When the proofs were ready, plaintiff notified defendant, who sent his wife to secure them at plaintiff's home. Defendant did not contact plaintiff after receiving the proofs, and plaintiff, fearing he would not meet the finish date set by defendant in the specifications, called him on the phone. After several conversations with defendant, in none of which defendant questioned plaintiff's

[ 217 Pa. Super. Page 15]

    preparation of proofs, plaintiff was told that another party had been engaged to do the printing. Plaintiff's request for payment from the Church was refused, the Church advising plaintiff by letter that defendant's authority extended only to securing bids. When the Church did not recognize any binding obligation to plaintiff, suit was instituted against it. The Church's position was sustained in those proceedings and plaintiff then proceeded with the present suit against defendant.

Defendant contends that he acted only as agent; that he never agreed to pay the $9.00 per page and had no authority to enter into such agreement; that his authority was limited to securing bids or estimates; that he thought the papers his wife received from defendant would be the papers he had left with plaintiff, plus the estimate. Defendant, however, admittedly never contacted plaintiff after receiving the proofs to question why he had proceeded with the printing.

The Court below, sitting without a jury, found in favor of the plaintiff, as had the arbitrators from whose decision defendant had appealed to the court below, and ordered defendant to pay plaintiff $998.00: $650 representing the ...


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