Berkley v. Maxwell Motor Sales Corp.
| Decision Date | 12 October 1918 |
| Docket Number | 115-1918 |
| Citation | 70 Pa.Super. 418 |
| Parties | Berkley v. Maxwell Motor Sales Corporation, Appellant |
| Court | Pennsylvania Superior Court |
Argued April 8, 1918 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]
Appeal by defendant, from order of C.P. Somerset Co.-1917, No. 64, making absolute rule for judgment for want of a sufficient affidavit of defense in case of E. M. Berkley and F. W. Floyd, partners doing business as the Meyersdale Auto Company v. Maxwell Motor Sales Corporation.
Rule for judgment for want of a sufficient affidavit of defense.
Ruppel, P. J., filed the following opinion:
Plaintiff's statement of demand claims to recover for three separate items. For one of these items judgment was tendered in the affidavit of defense and accepted by the plaintiff and paid. Another of the items is abandoned in the motion for judgment, plaintiff admitting that it cannot recover. This reduces plaintiff's claim to the single item of $ 210, spoken of as a cash bonus of $ 10 per car for twenty-one cars sold under the contract. Defendant denies liability for this claim on two grounds: First, that this bonus was only to be paid in case the plaintiff sold the entire number of cars specified in the contract during the year the contract was in existence, and not having sold the number of cars, and in other respects not having complied with the contract, plaintiff is not entitled to recover And second, that even if plaintiff be entitled to recover, this claim, by the terms of the contract, was not to be paid by the defendant until sixty days after the expiration of the year during which the contract was to run, and that therefore the suit has been prematurely brought.
The parties entered into a written article of agreement dated the 7th of July, 1916, by which the plaintiff was to sell certain automobiles for the defendant at prices therein stipulated. By the terms of this agreement the plaintiff agreed to order from the defendant touring cars upon a monthly schedule, during July, 1916, twelve cars, August, September and October, each six cars, etc., until in June, 1917, the total should make seventy cars. The prices to be paid by the plaintiff for these cars were fixed by this contract. Then it was further provided that if the plaintiff " (a) take and pay for the cars specified in the above schedule in the quantities and months shown, (b) settle our parts account each month, (c) make weekly reports as required by paragraph 8i of our sales agreement, he will receive a cash bonus of $ 10 per car for each car taken under this agreement including all cars in excess of above schedule, said bonus to be paid within sixty days after June 30, 1917, after deducting any amount due you from us."
The 13th paragraph of the article of agreement reads:
" This agreement shall continue in force and govern all transactions between the parties hereto until cancelled, it being agreed that either party shall be at liberty to cancel and annul this agreement at any time upon written or telegraphic notice to the last known address of the other party; and said cancellation shall also operate as a cancellation of all orders for automobiles, parts or attachments which may have been received by the company," etc.
The plaintiff's statement alleges that on the 27th of September, 1916, the defendant cancelled the agreement without assigning any reason therefor. In the plaintiff's statement it is averred that plaintiff sold 24 automobiles. This is denied in the affidavit of defense, and it is alleged that while 24 were ordered, only 21 were accepted by the plaintiff and sold, and plaintiff now admits that this statement is correct; that the three cars which had been shipped were not delivered to the plaintiff, but were returned to the defendant, and no claim is now made by either party for or on account of those three cars. Defendant admits the cancellation of the agreement as averred by plaintiff, but assigns as a reason therefor that J. E. Kelly, who was a member of the plaintiff firm at the time the contract was entered into resigned and retired from said firm, and that for that reason the defendant availed itself of the clause in the agreement, 8d, which reads:
" That he will not assign this agreement nor any rights hereunder without the written consent of the company, and that if he makes any change in any car supplies by the company, the liability of the company under its warranty shall cease."
The plaintiff company was a general partnership and the retirement of one member from the firm was not an assignment within the meaning of this clause in the article of agreement. Furthermore, defendant did not give as a reason for its cancellation to the plaintiff company the retirement of Kelly from the partnership; but the defendant had the right under the terms of the agreement to cancel at any time without assigning any reason therefor; and the rights of the parties under the contract as cancelled must be determined from the language of the agreement itself. Under these facts is the plaintiff entitled to the additional $ 10 per car as provided in this agreement? While the word " bonus" is used in the agreement, it is manifest from the entire agreement itself that the parties had in view that in addition to the commission as fixed by the list price of the automobiles, as attached to the agreement, the plaintiff was to receive an additional compensation of $ 10 per car, unless through some fault of the plaintiff, some violation of the contract, some act on its part, its right to such claim was defeated. That the contract must be construed by the court in the light of all the facts as revealed by the agreement is well established. The intention of the parties is to be gathered from all the circumstances as recited in the agreement. From the facts as alleged in plaintiff's statement and admitted in the affidavit of defense, no default can be charged upon the plaintiff. The plaintiff performed all the duties imposed upon it by the terms of the contract. If the defendant's contention be correct, then it would have had the right to have shipped to the plaintiff all the cars mentioned in the schedule up until May or June, 1917, save the last car, and then cancel the contract and say to the plaintiff " as you did not receive 70 cars, only 69, you are not entitled to the additional $ 10 charge." This would be so grossly inequitable that no court...
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