260 Pa. 64 | Pa. | 1918
Opinion by
The plaintiff sued in assumpsit and recovered a verdict, upon which judgment was entered; defendant has appealed. For purposes of this review, the case may be divided into two distinct parts, the first involving questions pertaining to a claim for interest on a deposit made by plaintiff with the defendant trust company, and the second relating to a claim for professional services performed by the former while acting as an architect for the latter,
The above facts are stated from the most favorable view of the proofs that can be taken in behalf of the plaintiff, and they disregard much evidence produced by defendant tending to show that the original deposit was made and accepted upon the basis of a checking account; but, as previously stated, in view of the verdict we must assume that the jurors not only believed the evidence relied upon by plaintiff and, where irreconcilable, disbelieved that produced by defendant, but also drew all inferences in favor of the former. When thus viewed, the record is ample to sustain the verdict and judgment for plaintiff so far as they relate to the first branch of this case; but there are several assignments alleging trial errors, in connection with the part of the controversy we have been considering, which require determination,
The fourth assignment complains of the trial judge’s refusal to affirm a point submitted by defendant to the effect that, if the jury believed the first entry of interest in plaintiff’s pass book was made in January, 1903 (as testified by defendant’s witnesses), and that plaintiff had possession of the book since that date, then there was “a legal presumption......he had knowledge of the fact that the interest was computed at two per cent, per an
The fifth assignment embraces a contention that all interest accruing before February 10, 1910, above the two per cent, per annum admitted by defendant, is barred by the statute of limitations, the date given being six years prior to suit. Plaintiff’s amended statement of claim contains an allegation that the interest is payable semiannually, and, in connection with the point now before us, defendant attempts to make much of this assertion; but it is evident the averment in question means simply that twice in each year interest is to be calculated upon and added to plaintiff’s account, and not that it accrues at these times as a separate demand. “Interest, in its very nature, is but an incident of a debt” (Heath v. Page, 63 Pa. 108, 121), and ordinarily it is not compounded (Stokely v. Thompson, 34 Pa. 210), yet here, from time to time, the defendant appears actually
As to the second branch of the case, the facts are these: Early in 1913, defendant employed the plaintiff as an architect to draw plans, etc., for an addition to its bank building, the contract being evidenced by a letter, dated January 24,1913, addressed to the former and signed by the latter, as follows, “For a commission of five (5%) per cent, upon the cost of the work in the erection and completion of the safe deposit department, or extension to your present bank building, I will furnish preliminary drawings and sketches until the same meet with your approval; furnish working drawings and specifications in such number as may be necessary to cover all branches of the work; supervise the erection and construction of the building; prepare all contracts and perform the usual and customary services of an architect, and to your entire satisfaction.” During the course of the work contemplated by this written contract, defendant concluded to make certain changes in the interior of its old building, in connection with the extension then under way, and plaintiff was instructed to perform the necessary services of an architect relating to this new work. Plaintiff admits that most of the additional work in question was- done at his suggestion, and that, for his services rendered at the beginning thereof, he orally agreed to charge only the commission of five per cent, mentioned in the above quoted letter. In this connection, he testified, “When I persuaded the directors to break into the front building, remove the rear wall and connect up so as to improve the new addition, Mr. Dewar [of the defendant corporation] asked me whether that would be in the commission of five per cent.......I said, ‘Yes, for ■that particular part, we would let that go with the origi
While plaintiff’s services in connection with the remodeling of defendant’s old bank building was, perhaps, somewhat different from those performed by him in and about the erection of the extension thereto, yet the former was of the same general character as the latter, and, in view of the stipulated compensation designated in the original written contract between the parties, the burden was upon plaintiff at least to show facts which would give rise to an implied contract to pay a higher standard of remuneration for the one than the other, before he could recover anything over and above the five per cent, commission originally named by him: Wallace v. Floyd, 29 Pa. 184, 185; Ranck v. Albright, 36 Pa. 367, 371; Rosencrance v. Johnson, 191 Pa. 520, 532. See also Johnson v. Wanamaker, 17 Pa. Superior Ct. 301, 304-6.
We do not mean to intimate the cases just cited hold that a contract fixing a rate of compensation for certain defined personal services will be extended to other serv
Of course, had the plaintiff at bar produced evidence tending to show some sort of a definite notification that, from a fixed time or after the completion of a certain designated part of the new work, he would not render any future service in connection therewith unless his pay were based upon a standard of compensation other than that stipulated in his original contract, then the case would be different; for, under such circumstances, the law might imply an undertaking by defendant to pay plaintiff a higher rate of compensation for his service on the new work, if, as a matter of fact, such higher rate represented the reasonable worth thereof. Here, however, the evidence upon the subject in hand not only preponderates against plaintiff, but it is entirely inadequate to show any contract, either express or implied, fixing a basis of compensation different from that named in plaintiff’s original undertaking with defendant, i. e., five
We can not say, however, that plaintiff was entitled only to; the sum allowed him in defendant’s affidavits of defense (as set forth in our next paragraph) ; for the amount of compensation to be recovered depends upon the proper cost of remodeling defendant’s old building, which (unless the parties can agree upon it and thereby avoid a new trial) must be found by a jury. On the evidence as it stood at the last trial, defendant was entitled to an instruction that no understanding, either express or implied, having been shown by plaintiff to pay him more than the five per cent, mentioned in the original contract of employment, that is the standard of compensation which must guide the jury in rendering their verdict; this, in effect, was the instruction requested, as called to our attention by the eighth and last assignment of error, which is sustained. What we have already written sufficiently covers the other assignments, so it is unnecessary specifically to consider them.
To clarify the order we are about to make, it may be well to state that plaintiff sued to recover (1) the amount of his original deposit, $11,889, with • interest thereon at the rate of four per cent, per annum, (2) $1,-500, being architect’s commission at five per cent, upon the cost of construction of the addition to defendant’s building, and (3) $3,000 in fees for extra professional work in connection with the remodeling of the old building, which latter service plaintiff contends was not contemplated or provided for in the written contract designating his compensation. Defendant, in its affidavits of defense, admitted liability for the deposit, with two
The judgment, to the extent of its relation to the first branch of this case, is affirmed; but, so far as it pertains to the second branch of the controversy, it is reversed with a venire facias de novo. The court below is directed to apportion the award of the jury in accordance with the foregoing opinion and this order; the costs to date to be divided equally between the litigants.