376 Pa. 57 | Pa. | 1954
Opinion by
There are three appeals in this case, the appeal of Mariano C. Arnoni, the appeal of Caesar P. Arnoni, and the joint appeal of Mariano C. Arnoni and Caesar P. Arnoni. All appeals are from the order of the court below granting plaintiff’s motion for a new trial after the court directed a verdict in favor of Caesar P. Arnoni and the jury had found a verdict in favor of Mariano C. Arnoni. ....
In February, 1947, suit was instituted by the plaintiff a Delaware corporation, against Mariano C. Arnoni and his son, Caesar P. Arnoni, individually ánd
On February 24, 1947 there was another letter from the plaintiff corporation to M. C. Arnoni & Sons which set forth additional modifications. This letter provided in part: “. . . The modifications as included above shall be considered as a part of the contractual agreement of Feb. 12th as accepted by Mr. Arnoni on behalf of M. C. Arnoni & Sons and J. P. Beacom for the Morse Boulger Destructor Company. . . . Terms of payment —85% of the value of material delivered and work in place, or according to a payment schedule approved by
“Accepted for M. C. Arnoni & Sons
(Signed) M. C. Arnoni
Accepted for Morse Boulger Destructor Company
(Signed) T. J. Kelley & (Signed) J. P. Beacom
Dated 2-25-47”
On March 4, 1947, Laboon sent a letter to plaintiff corporation in which he requested it to execute three copies of an enclosed formal agreement with the explanation that an agreement in such form was required for financing purposes. The three copies were executed by plaintiff and returned to defendants on March 13, 1947. Neither of the defendants ever executed or returned these formal agreements.
The factual issue presented was whether the letters of February 12, 1947 and February 24, 1947, each of which, as above appears, was addressed to M. C. Arnoni & Sons and accepted in writing by M. C. Arnoni, together were intended by the parties to constitute a complete contract.
Plaintiff introduced testimony by Thomas J. Kelley, vice-president and sales manager of the plaintiff corporation, and Patrick J. Beacom, its field representative, both of whom signed the letters on behalf of plaintiff, and also the testimony of John F. Laboon, the consulting engineer for the defendants, all of which was to the effect that it was intended and understood by all of the parties that upon the execution of the acceptance by M. C. Arnoni appearing on plaintiff’s letter of February 24, 1947, the contract was finally and fully agreed upon. Mariano C. Arnoni and Caesar P. Arnoni testified that they had no intention to enter a binding contract until the plan's and specifications
Laboon, Kelley and Beaeom all testified that the final agreement was arrived at and accepted by Mariano C. Arnoni in Baboon’s office in the City-County Building in Pittsburgh, and that those three and both Arnonis were present at that time. Mariano C. Arnoni testified that Kelley, Beaeom and Laboon were present when he signed his acceptance upon the letter of February 24, 1947, as well as his son, Caesar P. Arnoni, and that he had no recollection of whether he signed the letter in the City-County Building or in Baboon’s office in the Berger Building. Caesar P. Arnoni testified that at the time Mariano C. Arnoni’s acceptance was noted on the letter of February 24, 1947, only he, his father and Beaeom were present and that the meeting was in the Berger Building.
There was therefore a decided conflict in the testimony as to the place where the letter of February 24, 1947 was signed as accepted by M. C. Arnoni, the surrounding circumstances and the intention of the parties at that time. Baboon’s testimony that following the events of February 24th and 25th, plaintiff proceeded to enter into subcontracts and order material was uncontradicted. Defendants admitted in the pleadings, and it was read into the testimony that certain materials were delivered on the site and refused by Mariano C. Arnoni on or about July, 1947.
In connection with the conflict in the testimony, it should be noted that John F. Laboon, whose testimony supported plaintiff’s version, had been retained by the defendants as consulting engineer to be in charge of the construction of the garbage disposal plant. De
Where there is an appeal from an order granting a new trial, the question before this Court is whether there has been a palpable abuse of discretion by the court below: Gawron v. Levine, 373 Pa. 384, 96 A. 2d 149. The presumption is that the grant of a new trial is justified even when the reason given therefor is insufficient, unless the Court expressly states it is the only reason: Foster v. Waybright, 367 Pa. 615, 80 A. 2d 801.
In the opinion of the lower court, four reasons were assigned for the grant of a new trial: (1) that the court erred in affirming defendants’ 15th point for charge; (2) a remark made by one of the jurors as the jury retired for its deliberations; (3) in justice a new trial should be granted; and (4) “It is significant that Mr. Laboon, who was unquestionably the consulting engineer and the one who prepared the plans for the defendants, corroborated in practically every detail the contention of the plaintiff in this case, and his testimony clearly indicated a breach of the completed contract. In the opinion of the trial judge, La-boon’s testimony clearly established that the exhibits heretofore referred to constituted a complete contract
(1) Defendants’ 15th point for charge was as follows : “15. Under the law and evidence in this case the jury may find that the writings of February 12-13, 1947 (Plaintiff’s Exhibit B) and February 24-25, 1947 (Plaintiff’s Exhibit C) were merely an arrangement of terms in contemplation of a written contract and not a perfect agreement upon which an action can be maintained.”. This point was simply an embodiment of defendants’ theory of the case and merely a restatement of other points for charge properly affirmed by the trial judge without hesitation. An award of a new trial based solely upon this reason would be a palpable abuse of discretion.
(2) As the jury was leaving the court room to consider the case, one of the jurors made a remark substantially as follows: “I can’t give a decision in this case; if I do; it is against my will.”. The jury considered the case for approximately four hours and there is no evidence either that the original attitude of the juror who made the remark persisted, or that it had any bearing on the deliberations or verdict of the jury. Moreover, the trial judge called counsel for both parties to side bar and afforded either of them an opportunity to request a mistrial and both refused. We must therefore assume that both counsel considered the juror’s remark to be harmless. Under such circumstances it can not provide the basis for a new trial.
(3) An award of a new trial may not be based solely on “the interest of justice”. Where this is the only reason assigned for the grant of a new trial, this
Appellant Caesar P. Arnoni contends that there is no evidence in the record which established that he was a partner with his father or that there was in fact any partnership known as M. C. Arnoni & Son. Appellee contends that there is an admission in the testimony which is sufficient to establish the partnership. The record shows that when Mariano C. Arnoni was called by the plaintiff to testify as on cross-examination, he was confronted with an answer filed and signed by both defendants
While Exhibit H, the answer in the previous suit which was signed by Caesar, was filed sometime in 1943, and the transaction giving rise to the present suit occurred in 1947, the plaintiff enjoyed the presumption that a status or relationship once shown to exist is presumed to continue in the absence of evidence to the
The order of the court below directing a new trial as to all defendants is affirmed.
In the trial of the case and in the evidence adduced the partnership was sometimes referred to as “M. O. Arnoni and Sons”. No issue arises in this regard.
The witness identified both signatures. ;;