231 Pa. 68 | Pa. | 1911
Opinion by
This is an action of assumpsit for money had and received by the defendants for the use of the plaintiff, and the right to recover depends on whether the plaintiff released his “equity” in the five houses created by the agreement entered into between him and Bihlmaier in June, 1906. The question was submitted to the jury and there was a finding in favor of the plaintiff and a verdict for the amount of his claim less certain carrying charges. The court, however, entered judgment for defendants non obstante veredicto under the act of 1905 on the ground that certain language in the letter of November 26, 1907, of Mr. Brooks, the treasurer of the trust company, to plaintiff’s counsel “was a distinct offer that was accepted by Dougherty doing the work and taking the money. This acceptance is fatal to his present claim.” The plaintiff has appealed, and assigns for error the action of the court in entering judgment for the defendants.
We cannot agree with the learned court’s conclusion in holding that the letters constituted the contract between the plaintiff and the defendants. We think the agreement was partly in writing and partly in parol, and that all the evidence should have been submitted to the jury to determine the contract between the parties. This having been done and the jury having found in favor of the plaintiff, judgment should have been entered on the verdict.
It is equally clear that Mr. Wood, in his letter of December 11,1907, the third of the series, did not agree to accept the counterproposal contained in Mr. Brooks’s letter by which, it is claimed, that Dougherty released or waived his equity in the five houses. On the contrary, the letter .distinctly rejects the proposition and declares that Dougherty will assert his “equity” against Bihlmaier, the trust company and Sutton, the surety. It says: “Notwithstanding the terms of your letter of November 26th, I desire to state, that Mr. Dougherty will use all legal means in his power to secure for himself his full rights against Mr. Bihlmaier, the Tradesmen’s Trust Company and Mr. Sutton, the surety. I further desire to state, that, upon behalf of Mr. Dougherty, we will endeavor to hold the Tradesmen’s Trust Company to. a strict accountability in the matter of the disposition of the houses, and I would suggest that they shall not be sold for any sum which will not net an amount sufficient to pay, inter alia, my client.”
The proposition contained in the Brooks letter that Dougherty should complete the work is referred to by Mr.
It will be observed that the letters themselves do not show any express release or renunciation of the “equity” held by Dougherty in the five houses secured by his contract with Bihlmaier. Mr. Wood’s first letter, by its request for subrogation, clearly shows that Dougherty claimed something beyond the $2,900. Conceding that the effect of the last paragraph in Mr. Brooks’s letter of November 26 would be to waive Dougherty’s “equity” in the houses, as held by the learned court below, there was no acceptance of that proposition by the plaintiff, either in writing or by parol. The letter of December 11 expressly negatives any thought on the part of Dougherty of renouncing his right to this “equity” in the houses. The parol testimony was ample to justify the jury in finding, as they did, that Dougherty did not waive or intend to waive his claim or lien on the five houses, and that the contract, as disclosed by the letters and the parol testimony, was simply that Dougherty should complete the plumbing work for $2,900 to be paid to him by the trust company as the work progressed. When the circumstances of the case, existing at the time of Bihlmaier’s failure, are considered, it is unreasonable to suppose that Dougherty agreed to waive his claim on the five houses. He had at that time done work on which there were due and unpaid $1,150, and work of the value of $1,900 was yet to be done to complete the contract, or $3,050 in all, beside the $2,600. If the contention of the defendants be correct, he agreed in consideration of the payment of $2,900 to do the balance of the work and also release his claim for $2,600. Such a proposition would certainly not present itself very favorably to the judgment of a practical business man. The trust company was obligated to complete the buildings, and Dougherty was required by his bond to complete the plumbing in accordance with his contract. Each party, therefore, was required to complete his contract. There is no apparent reason why
If it be contended that Mr. Brooks’s offer in his letter of November 26, 1907, was accepted by the conduct or acts of the plaintiff, it would still be a question for the jury whether such conduct or acts amounted to an acceptance. The contract would have to be ascertained from the letters and the acts of the parties, and in such case the question is for the jury and not for the court: McClure v. Times Publishing Co., 169 Pa. 213.
We think it was error for the learned court below to enter judgment for the defendants notwithstanding the verdict, and, therefore, the judgment is reversed, and the court below is directed to enter judgment on the verdict for the plaintiff and against the defendants.