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JIM MCKAIN FORD v. GEORGE W. OLIVER AND SARA L. OLIVER (04/11/79)

submitted: April 11, 1979.

JIM MCKAIN FORD, INC.
v.
GEORGE W. OLIVER AND SARA L. OLIVER, APPELLANTS



No. 1253 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, at No. 9099 of 1975

COUNSEL

William W. Guthrie, Pittsburgh, for appellants.

James R. Miller, Pittsburgh, for appellee.

Cercone, President Judge, Wieand and Hoffman, JJ. Wieand, J., concurs in the result. Hoffman, J., files a dissenting statement.

Author: Cercone

[ 272 Pa. Super. Page 106]

The question presented is whether there is competent and sufficient evidence of record to support the lower court's conclusions that an implied-in-fact contract of debt assumption existed between plaintiff and defendants, husband and wife, which contract justified recovery by plaintiff-appellee the amount it advanced to a credit company on behalf of defendant-appellants.*fn1 Our review of the record

[ 272 Pa. Super. Page 107]

    reveals that there is abundant evidence to support the lower court's findings and conclusions of law based thereon; accordingly, we affirm.*fn2

On or about April 1, 1975, appellants, Mr. and Mrs. Oliver, purchased a used 1973 Ford automobile (Galaxy) from appellees, Jim McKain Ford, Inc. (McKain). The sale was consummated by an "Automobile Retail Installment Contract," executed by the Olivers, who also signed the required "Verification of Insurance" on the auto. This contract also provided for financing of the purchase price ($2,495.00) by Ford Motor Credit Company (Credit Company). The Olivers accepted delivery of the Galaxy on April 5, 1975, and Mr. Oliver, accompanied by Mrs. Oliver, drove the car from McKain's place of business to a service station, a distance of approximately 10 miles. During this routine stop, some work was performed under the hood. Shortly thereafter, for no apparent reason, the Galaxy ignited in flames and was completely destroyed.

Mr. Oliver informed a McKain representative of the destruction of the auto and arranged to have it towed back to the dealership. Upon the car's arrival, Mr. Hardin, the salesman who had earlier sold the Galaxy to the Olivers, provided Mr. Oliver with a free loaner automobile at the latter's request.*fn3 At this juncture, the facts are contested by the parties. McKain's agent, Mr. Hardin, testified that Mr. Oliver stated to him "that [Mr. Oliver's] insurance company would take care of [payment for the destroyed vehicle]." Notes of Testimony at 13. The Olivers, however, both testified that neither of them ever made an express personal promise to pay, or a promise that their insurance

[ 272 Pa. Super. Page 108]

    company would reimburse McKain if McKain satisfied the debt to the Credit Company. Nevertheless, McKain's employees further testified that based upon this alleged promise, and at the request of the Olivers, they not only found the Olivers a similar auto for future purchase, but also paid off the outstanding lien on the Galaxy in order that the Olivers could obtain financing for the proposed second purchase.

Subsequently, the Olivers returned the loaner, and executed another contract for the purchase of a second car.*fn4 The circumstances surrounding this second purchase are also disputed by the parties. Mr. David Sheft, McKain's used car manager who delivered the second auto to Mr. Oliver, testified that Mr. Oliver again reaffirmed the fact that "he was turning it into his insurance company." Notes of Testimony at 31. Appellants, however, testified that no such statements were made, and furthermore, "[t]here was no statement [McKain] would pay the [Galaxy] off." Notes of Testimony at 54. Approximately a week after this second purchase, the Credit Company, which had received payment of the outstanding lien on the Galaxy from McKain, mailed the contract governing the initial ...


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