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DONALD KEELER v. INTERNATIONAL HARVESTER USED TRUCK CENTER (07/29/83)

filed: July 29, 1983.

DONALD KEELER
v.
INTERNATIONAL HARVESTER USED TRUCK CENTER, HAROLD B. TERRY, INDIVIDUALLY AND T/D/B/A TERRY TRUCK CENTER AND JAMES W. ECK. APPEAL OF JAMES W. ECK



No. 2374 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action, Law, of Lycoming County, at No. 79-5465.

COUNSEL

Emerson E. Yaw, Williamsport, for appellant.

Joseph Musto, Wilkes-Barre, for appellee.

Rowley, Hoffman and Van der Voort, JJ.

Author: Per Curiam

[ 317 Pa. Super. Page 245]

This appeal arises out of an action for breach of express and implied warranties brought by Appellee Keeler against International Harvester Used Truck Center, Harold B. Terry and Appellant James W. Eck.

The action concerned a used 1975 Kenworth truck tractor which appellee had purchased from Terry in September of

[ 317 Pa. Super. Page 2461979]

. Terry had purchased the truck, for resale, from International Harvester in June of 1979. Appellant Eck advanced the money to Terry for the purchase of the truck. Title was placed in appellant's name. Terry and appellant agreed to split the profits from the resale. The possibility of a loss was not discussed. It was undisputed, however, that appellant was to be repaid the entire amount that he had advanced to Terry. Appellee claimed that the relationship between Terry and appellant constituted a joint venture with respect to the sale of the truck. If appellee is correct, appellant would be jointly liable with Terry for any breach of warranty. Appellant, on the other hand, maintained that his relationship with Terry was merely that of creditor and debtor.

At the conclusion of the trial, the court ruled, sua sponte, that the relationship between Terry and appellant was, as a matter of law, a joint venture and instructed the jury that if Terry was liable then appellant was also liable. In essence the court directed a verdict against Eck on the crucial issue of whether a joint venture existed. The jury returned a verdict for appellee against Terry and appellant in the amount of $52,102.00. No liability was found on the part of International Harvester. Post-trial motions were filed and denied. Terry did not appeal. This appeal by Eck is from the trial court's order entering judgment on the verdict.

The sole issue raised on appeal is whether the court erred in ruling that a joint venture existed as a matter of law. We agree with appellant that the question of whether a joint venture existed in this case should have been submitted to the jury. What constitutes a joint venture is a question of law; but whether a joint venture exists is generally a question of fact. 46 Am.Jur.2d Joint Ventures ยง 7.

To constitute a joint venture, certain factors are essential:

1) Each party to the venture must make a contribution, not necessarily of capital, but by way of services, skill, ...


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