Baldwin v. Magen

• Decision Date: 04 February 1924
• Docket Number: 22
• Citation: 123 A. 815,279 Pa. 302
• Parties: Baldwin v. Magen, Appellant
• Court: Pennsylvania Supreme Court

123 A. 815

279 Pa. 302

Baldwin v. Magen, Appellant

No. 22

Supreme Court of Pennsylvania

February 4, 1924

Argued January 8, 1924

Appeal, No. 22, Jan. T., 1924, by defendant, from judgment of C.P. No. 1, Phila. Co., June T., 1921, No. 2300, on verdict for plaintiff, in case of William F. Baldwin v. Harry Magen trading as Magen Hardware Co. Reversed.

Assumpsit for commissions under contract of employment. Before McDEVITT, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $3,174.82. Defendant appealed.

Error assigned was, inter alia, refusal of judgment n.o.v. for defendant, quoting record.

The first, second, third and fourth assignments of error are sustained and a new trial is granted.

Owen J Roberts, with him Joseph Moss, for appellant. -- The court was clearly wrong in submitting the question to the jury what the written contract meant: Straus v. Wanamaker, 175 Pa. 213; Osler v. Bennett, 33 Pa. C.C.R. 193; Watson v. Blaine, 12 S. & R. 131; Foster v. Berg & Co., 104 Pa. 324; Shafer v. Senseman, 125 Pa. 310; Standiford v. Kloman, 234 Pa. 443; Societe v. Loeb, 239 Pa. 264.

It was incumbent on the trial judge to state what is the meaning of the phrase "gross profits": Shafer v. Senseman, 125 Pa. 310; Wells Whip Co. v. Ins. Co., 209 Pa. 488; Sims's App., 44 Pa. 345; Thomson v. Ins. Co., 4 Pa. Dist. R. 382; Sparks v. Pittsburgh, 159 Pa. 295; St. John v. Ry., 89 U.S. 136; Hentz v. Penna. Co., 134 Pa. 343; Lytle v. Somers, etc., Co., 276 Pa. 409.

Oswald M. Milligan, for appellee.

Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

On the oral argument it was virtually conceded by defendant's counsel that, in the view then taken, his position, that judgment should be entered in his client's favor, was not tenable. Our further study of the record confirms this conclusion and leaves for consideration but one question: Was the construction of the contract on which suit was brought for the court or for the jury, to whose interpretation the trial judge submitted its controlling provisions?

The writing evidenced the agreement of the parties upon the terms of plaintiff's employment by defendant as manager of one of the departments of the latter's hardware business. As originally drawn, the contract was for one year, but, before it was signed, the word "one" was erased and the word "two" inserted. There is no contention that the actual employment was not for two years and plaintiff served appellant for that period, less a few days. The agreement stipulated for the payment to plaintiff of a weekly salary and further that the net profits of the department should be divided in certain contingencies between the parties; it also provided the method by which the net profits were to be ascertained. Following the main body of the contract and signed at the same time, there was a clause in the handwriting of plaintiff denominated "addenda," differing slightly in wording on the two copies, but which on both provided in substance that if the employment continued for two years, plaintiff should be paid five dollars additional weekly salary; this he received during the second year. Although the evidence did not clearly show the fact, it would seem to be that the "addenda" was added while the contract provided for one year's employment, as it says, "If both parties to the above agreement hereby agree to continue this agreement for two years," etc.

In his statement of claim, plaintiff set forth net profits made in the first year amounting to $11,685.82 and claimed a commission due thereon under the terms of the contract of $3,174.82. He disregarded the second year entirely. Defendant contended, and his proof went to show, that during the second year losses were incurred which to a large extent wiped out the profits made during the first year. He urged upon the trial judge that the contract was an entire one covering a period of two years and that he as a matter of law should so instruct the jury. This the court declined to do, but submitted for their determination, whether the contract was for one year or two and whether the commissions should be calculated on the basis of one year's net profits or on those of the two years, taking the position that the interpretation of the contract was for the jury and not for him because of the discrepancy in the "addenda" in the two copies, saying to them, "I call your attention to a discrepancy that appears in the two copies [quoting each]. Just how much, if at all, this difference in the wording of the two copies supports the contentions of one side or the other, is for you to determine. . . . The first question you will have to determine is whether the contract between Baldwin and Magen was a contract for one year, renewable for a second year; or whether it was a contract for the term of two years." With this view we cannot agree. The contract by its express words was for two years. "Baldwin covenants and agrees to . . . act as manager of [the department] . . . for the term of two years." Nothing in the...