97 A.2d 71 (Pa. 1953), Gerfin v. Colonial Smelting & Refining Co., Inc.
| Judge | Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ. |
| Parties | GERFIN v. COLONIAL SMELTING & REFINING CO., Inc. |
| Date | 27 May 1953 |
| Docket Number | . |
| Court | Pennsylvania Supreme Court |
| Citation | 374 Pa. 66,97 A.2d 71 |
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Action in assumpsit by which plaintiff sought to recover additional commissions from defendant on ground that he had been induced to accept a reduced commission because of fraudulent misrepresentation of defendant that defendant's commission per unit from third party had been reduced. The Court of Common Pleas of Lancaster County at No. 70, October term, 1950, entered judgment on verdict for plaintiff, and defendant appealed. The Supreme Court, No. 87, January term, 1953, Bell, J., held that evidence considered as a whole, was not so clear and convincing or so clear, precise and indubitable as to warrant submission of case to jury.
Plaintiff brought an action in assumpsit to recover additional commissions of $9,088.44
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with interest, which he claimed to be due him, because the oral agreement for commissions made between himself and the defendant [374 Pa. 67] in July, 1948, and for which he had been paid in full, was obtained by defendant's fraudulent misrepresentation. The jury rendered a verdict for plaintiff's claim with interest; defendant's motion for judgment n. o. v. and for a new trial were dismissed; judgment was entered on the verdict, and from such judgment defendant took this appeal.
Stripped of unessentials, and matters that are here immaterial or irrelevant, the facts may be thus summarized.
Plaintiff, who was a salesman or broker, entered into an oral agreement with defendant in June, 1948 under which he was to receive a commission from the defendant on all aluminum scrap sold by the defendant to the New Holland Metals Co. (hereinafter called ‘ Holland’ ). The rate of commissions was in dispute. However, six weeks later, viz., in July, 1948, plaintiff averred and testified he agreed to accept a commission of $2.50 per ton instead of $5 a ton as agreed to in June because of defendant's fraudulent misrepresentation that the commission which defendant was receiving from Holland had been reduced from $20 a ton to $10 a ton. This is the crucial issue in the case, and the sole question is whether plaintiff's evidence of fraud was sufficient in quality to take the case to the jury.
We recently said in Wagner v. Somerset County Memorial Park, 372 Pa. 338, 341, 93 A.2d 440, 441:‘ It is well settled that fraud must be proved by clear and convincing evidence. New York Life Insurance Co. v. Brandwene, 316 Pa. 218, 172 A. 669; Suravitz v. The Prudential Insurance Co., 261 Pa. 390, 104 A. 754; Pusic v. Salak, 261 Pa. 512, 104 A. 751; Campdon v. The Continental Assurance Co., 305 Pa. 253, 157 A. 464. * * *’ Other cases thus expressed the same rule: ‘ The evidence of fraud must be clear, precise and indubitable; otherwise it should be withdrawn from the [374 Pa. 68] jury’ : Pennsylvania R. R. Co. v. Shay, 82 Pa. 198, 203.‘ Whether the evidence is true is a question of fact * * *; but whether it meets the required standard which justifies its submission to the jury * * * is always a question of law * * *" . Aliquippa National Bank, to Use of Woodlawn Trust Co. v. Harvey, 340 Pa. 223, 231, 16 A.2d 409, 414. How stands the record?
On or about June 21, 1948 plaintiff telephoned an officer of defendant that he had an outlet for aluminum scrap. As a result of this telephone call, he had an interview that same day with two of defendant's officers, Zuckerman and Sanger. As a result of this interview, plaintiff and Sanger and Zuckerman went to the New Holland Metals Co. Plaintiff introduced them to Holland's purchasing agent and defendant thereafter entered into a contract with Holland to supply it with aluminum scrap. Accordingly defendant bought overseas, mostly in Europe, 7 million odd pounds of aluminum scrap which it sold and delivered to Holland. On these sales it paid plaintiff for his services in bringing the parties together a commission of 1/8th of a cent per pound or $2.50 a ton, or a total of $9,088.44.
Plaintiff was also employed as a salesman by defendant, and on other business he earned, from July, 1948 to February, 1949, when he left the company, an additional $2,000.
Although plaintiff was paid his commissions on the Holland sales at the rate of $2.50 per ton and accepted the same in full, neither at any time when he was with the company, or for a year thereafter did he ever make any claim for additional commissions. He first made a claim for additional commission in January, 1950; on October 27, 1950 he issued a complaint in assumpsit.
Plaintiff in his complaint alleged that ‘ On or about the 21st day of June, 1948, plaintiff entered into an oral agreement with defendant containing the following [374 Pa. 69] terms: (a) Plaintiff turned over to defendant his account 1 with New Holland Metals Co. for the supply of aluminum scrap at a commission of Twenty ($20.00) Dollars per
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ton.’ This was untrue in that plaintiff never had any account with New Holland Metals Co.‘ (b) Defendant agreed to pay plaintiff the sum of Five Dollars per ton on all aluminum scrap supplied New Holland Metals Company, * * * .’ This averment defendant denied.
On September 24, 1951, a jury having been sworn, the case was continued to enable plaintiff to file an amended complaint. On November 23, 1951 an amended complaint was filed, in which plaintiff again untruthfully averred that he had turned over to defendant his account with Holland. Plaintiff again averred the $5 per ton oral agreement in June, 1948, but added the following: ‘ 4. During the third week of July, 1948, the defendant fraudulently represented to the plaintiff that the commission which they, the defendants, were receiving from New Holland Metals Co. had been cut in half. 5. Based on the aforesaid fraudulent inducement and...
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