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CAMBRIA SAVINGS AND LOAN ASSOCIATION v. ESTATE FRANCIS L. GROSS (01/14/82)

filed: January 14, 1982.

CAMBRIA SAVINGS AND LOAN ASSOCIATION
v.
THE ESTATE OF FRANCIS L. GROSS, DECEASED BY DOROTHY M. GROSS, ADMINISTRATRIX AND DOROTHY M. GROSS, IN HER OWN RIGHT. V. CONTRACTOR INDUSTRIES AND ACCEPTANCE CORPORATION AND HYMAN DATZ, INDIVIDUALLY



NO. 980 PITTSBURGH, 1980, Appeal from Judgment Entered in the Court of Common Pleas, Civil Division, of Allegheny County, July Term, 1974, No. 1793

COUNSEL

James W. Carroll, Jr., Pittsburgh, for appellant.

Robert C. Riethmuller, Pittsburgh, for Cambria Savings, appellee.

David F. Alpern, Pittsburgh, for Contractor, et al., appellees.

Price, Brosky and Montemuro, JJ. Price, J., did not participate in the consideration or decision of this case.

Author: Montemuro

[ 294 Pa. Super. Page 352]

INTRODUCTION

This appeal originated as an assumpsit action filed by plaintiff-appellee Loan Association, which had become the assignee of a contract originally executed by defendants-appellants (purchasers of aluminum siding) and additional defendants (the contractor who installed the improvement).

The court below instructed the jury extensively concerning the possibility of finding the contract a nullity and then finding the value of the work to be due and owing on a theory of quasi-contract and unjust enrichment. This theory then became the basis of the opinion of the court below. Upon review of the record, however, we find that this contract remained in force and effective until, under the terms of the contract, an event occurred which discharged the appellants' duties. Therefore, we reverse and remand to the lower court for entrance of judgment n. o. v. in accordance with this opinion.

[ 294 Pa. Super. Page 353]

FACTS ON THE RECORD

The operative facts are not in dispute. The husband-purchaser had had a health problem and was at home recuperating and anticipating his return to work when he was approached by a contractor on the subject of aluminum siding for his home. The purchasers, husband and wife, discussed the improvements with contractor's agent, Mr. Datz, and agreed on the work and the price, but took precaution of adding the following clause:

This contract null and void if customer cannot get disability and death and sickness insurance. Customer to pay for insurance.

It is undisputed that "customer" was intended to mean husband-purchaser, Mr. Gross. The contract was signed October 6, 1971. It was in combination with an agreement which assigned the debt to plaintiff Loan Association.

Mr. Datz then dialed an insurance agent, Mr. Mulligan, and introduced him by telephone to Mr. Gross, who inquired into the necessary insurance. Mr. Gross thereafter sent a check to Mr. Mulligan to initiate placement of the insurance.

A couple of days after the contract was signed, the contractor's crew pulled up to the property to begin the work. Mr. Gross went out and told the men not to start the job as he had not yet received his insurance. A few days later the crew reappeared, and again Mr. Gross refused to permit them to start. The workmen asked to use the telephone and talked with agent Datz, who then had a conversation with Mr. Gross. Mr. Mulligan, the insurance man, then called. After this contact, Mr. Gross permitted the work to begin. The siding was in place approximately one week after the signing of the contract. (R. N.T. 69-73).

Mr. Gross returned to his job on November 1, 1971, but actually put in only ten days of work before becoming permanently disabled (N.T. 73-74). He remained unemployable until his death by suicide in 1979 (N.T. 79). While still working, on November 10, 1971, Mr. Gross signed a Completion Certificate. The language, as quoted in court, reads as follows:

[ 294 Pa. Super. Page 354]

Do not sign this certificate until the dealer has completed the work and/or delivered the materials in accordance with the terms of your contract or sales agreement. (N.T. 83).

Mr. Datz testified that there was no problem whatsoever in receiving this signature, although the Completion Certificate was "the most difficult thing in the world" to obtain if even "the most minorest problem" existed (N.T. 114).

On December 23, 1971, Mr. Gross was informed that he was denied the disability insurance, and his check was refunded. The insurance agent testified that there was no predictable waiting period for insurance, but that there was a requirement that the purchaser must know within six months. (R. Deposition, 37). He also explained that a person who qualifies at date of application should be covered despite later disability, but that a ...


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