George I. Reitz & Sons, Inc. v. Donise Enterprise, Inc.
| Decision Date | 16 September 1983 |
| Citation | 465 A.2d 1060,319 Pa.Super. 76 |
| Parties | GEORGE I. REITZ & SONS, INC., v. DONISE ENTERPRISE, INC. T/D/B/A Engineered Industrial Services, a Pennsylvania Corporation, Appellant. |
| Court | Pennsylvania Superior Court |
John R. Fernan, Ridgway, for appellant.
William H. Schorling, Pittsburgh, for appellee.
Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
The instant appeal by the Defendant-Appellant Donise Enterprise, Inc., t/t/b/a Engineered Industrial Services (hereinafter referred to as "Donise") arises following the lower court's denial of a motion for new trial. 1 The case had been tried before a jury, which returned a verdict for the Plaintiff-Appellee, George I. Reitz & Sons, Inc. (hereinafter referred to as "Reitz"), awarding damages on a breach of contract claim.
The evidence, as adduced in the lower court, shows that in July, 1979, the parties entered into a contract calling for Reitz to manufacture a large stainless steel part of a paper making machine, known as a transition piece. The agreed consideration for the work was to be $11,419.00, and it was to be picked up by Donise at the Plaintiff's plant. On December 19, 1979, Donise picked up the transition piece at Reitz's plant, by truck, and conveyed it to a customer of a paper mill in Johnsonburg, Pennsylvania. On the same date, Reitz issued an invoice to Donise for $11,419.00, which was to be paid within 30 days.
In January, 1980, a Donise employee contacted officers of Reitz, to request a meeting at the paper mill to discuss some welds and discolored spots on the transition piece that allegedly had not been ground smooth and polished sufficiently to the standards necessary for the use of the transition piece in the paper making process. At the subsequent meeting, the representatives of Reitz and Donise agreed that because the transition piece was a large and cumbersome piece of equipment, Donise would grind and polish the welds and discolored spots at the plant site, and that the cost of this work would be charged back against Reitz.
During the period from January through April, 1980, Reitz demanded payment for the transition piece, but no payment was forthcoming from Donise. Unknown to Reitz, Donise had been paid for the transition piece in early February, 1980 by the paper mill owner. In April, 1980, Donise requested that Reitz pick up the transition piece because plans had been altered and the transition piece required changes. Reitz picked up the transition piece at the paper mill and thereafter advised Donise that the additional work to meet the new specifications would result in additional charges of $8,115.00. Reitz again requested that it receive either full or partial payment from Donise on the $11,419.00 charge for the original fabrication of the transition piece. Donise refused to pay anything until after Reitz had performed the alterations necessitated by the changed plans. Reitz then informed Donise that no further work would be done on the transition piece until it had been paid for its original work. Donise refused to pay Reitz and purchased a substitute transition piece elsewhere which it delivered to its customer at the paper mill.
After considering the evidence, the jury returned a verdict against Donise for the contract price, $11,419.00. On the motion of Reitz, the lower court molded the verdict to include prejudgment interest of $1,610.08, resulting in a final verdict in the amount of $13,029.08. Donise raises three separate arguments on this appeal in support of its contention that the lower court erred in denying its motion for new trial.
First, Donise maintains that the lower court erred in allowing Reitz to introduce evidence of an alleged agreement between the parties regarding efforts by Reitz to cure the allegedly defective condition of the welds and discoloration on the transition piece. The Appellant contended that this evidence should not have been admitted because there was no consideration for such an agreement.
We find no substance to this claim as there was evidence that Reitz promised to pay Donise for its work in grinding and polishing the welds. A promise to pay has long been held to be valid consideration in our Commonwealth. See In re Estate of Ratony, 443 Pa. 454, 277 A.2d 791 (1971), and cases and other authorities cited therein. Thus, the Appellant's contention that there was no consideration for the agreement is incorrect. Moreover, we note that the lower court found that the agreement in question was admissible into evidence as proof on behalf of Reitz that Donise had "accepted" the transition piece, pursuant to the Commercial Code, 13 Pa.C.S.A. § 2606. Such evidence showed that Donise agreed to keep the transition piece and grind and polish the non-conforming parts and charged the cost of same back against Reitz. Therefore, the evidence as to the agreement was clearly relevant to prove that Donise did not act to "reject" the transition piece, but instead "accepted" it despite the non-conforming welds. It is evident that there is no merit to the Appellants' initial claim of error.
Second, Donise maintains that the jury verdict was improper because it did not give the Appellant credit, in the amount of $500.00, which was the cost of remedying the nonconforming welds. Donise claims that the verdict was, in that particular, in direct contravention of the lower court's instructions. It is clear that the grant of a new trial is proper only when the jury's verdict is so contrary to the weight of...
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