Goldman v. National Refrigerator Co., Inc.

• Decision Date: 31 January 1936
• Docket Number: 246-1935
• Parties: Goldman v. National Refrigerator Company, Inc., Appellant
• Court: Pennsylvania Superior Court

182 A. 730

120 Pa.Super. 458

Goldman v. National Refrigerator Company, Inc., Appellant

No. 246-1935

Superior Court of Pennsylvania

January 31, 1936

Argued October 14, 1935

Appeal by defendant, from judgment of M. C., Phila. Co., Feb. T 1934, No. 741, in case of Eugene M. Goldman v. National Refrigerator Company, Inc.

Assumpsit. Before Bluett, J., without a jury.

The facts are stated in the opinion of the Superior Court.

Findings and judgment for plaintiff. Defendant appealed.

Error assigned was refusal of motion for new trial.

Affirmed.

Herbert L. Floun, with him Joseph L. Fox, for appellant.

Barry H. Hepburn, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Parker, J.

This is an action in assumpsit wherein the plaintiff, a salesman seeks to recover from the defendant, a manufacturer and dealer in refrigerators, commissions claimed to be due from it for sales made by him. It was alleged by the plaintiff that the parties, on or about July 15, 1931, entered into an oral contract whereby plaintiff was to sell defendant's products and was to receive as compensation fifty dollars for each refrigerator case sold by him, as well as all commissions due from the Elliott-Lewis Electrical Company for electrical units supplied for the refrigerator cases sold by the plaintiff; that he made several sales for one of which he was not paid his commission by the defendant. It was next claimed that by an agreement in writing the parties, on December 13, 1932, agreed that plaintiff should thereafter devote all his time to the sale of defendant's products for which he was to receive twenty-five dollars weekly as a salary and that plaintiff would give to the defendant one-half of his commissions received from Elliott-Lewis Electrical Company or other dealers, and that on or about March 15, 1933, by oral agreement, a change was made in the written contract whereby the commissions received for electrical units should be paid to defendant and that it should then pay plaintiff one-half thereof. It was finally claimed that a special oral contract was made between the parties whereby plaintiff should collect installments due on certain contracts for the sale of cases for which he should be paid by defendant three per cent of the amount so collected; that numerous sales were made of electrical units and cases for which the defendant did not pay the plaintiff his share; and that there was also due him salary for one week under the written agreement and commissions for the collection of certain installments, the total amount of his claim being $ 425.34 after giving credit for eighty-one dollars paid on account. Defendant denied that there was any other contract between the parties than the written agreement and claimed that it had fully compensated plaintiff for all service in accord therewith.

The plaintiff produced evidence, largely that of himself, which if believed would sustain his claim as to the different contracts of employment and that there were due from defendant to plaintiff commissions which he had not been paid. On the other hand, if the testimony of defendant was believed, there was but one contract and that the written one. The case was tried by a judge without a jury and judgment was entered in plaintiff's favor for $ 334.29.

In entering judgment the court below did not indicate precisely the portion of plaintiff's claim which was not allowed, but a careful review of the testimony convinces us that there was ample evidence which, if believed, would support the amount of the finding. Findings of fact in such a case are entitled to the same weight as the verdict of a jury: McDonald Construction Co. v. Gill, 285 Pa. 305, 132 A. 368; Athens National Bank v. Ridgebury Twp., 303 Pa. 479, 483, 154 A. 791. When a question is one of fact and depends upon oral testimony, the credibility of the witnesses is for the jury, in this case for the trial court sitting as a jury: Harlow v. Homestead Boro., 194 Pa. 57, 45 A. 87; Phila. v. Ray, 266 Pa. 345, 349, 109 A. 689.

There remains for consideration one further question raised by appellant concerning that portion of the judgment which compensated plaintiff for his share of commissions received by defendant for sales made by plaintiff of electrical units for the Elliott-Lewis Electrical Company. These units were not manufactured by defendant but were a necessary part of a complete installation of a refrigerating machine. Both parties sold them and received commissions for such sales. By the written agreement plaintiff undertook to give to defendant one-half of all commissions so received by him. The only modification of the written contract as claimed was that the commission was thereafter to be paid by...