Heyman v. Hanauer

• Citation: 302 Pa. 56,152 A. 910
• Decision Date: 24 November 1930
• Docket Number: 189
• Parties: Heyman, Admrx., Appellant, v. Hanauer
• Court: United States State Supreme Court of Pennsylvania

152 A. 910

302 Pa. 56

Heyman, Admrx., Appellant, v. Hanauer

No. 189

Supreme Court of Pennsylvania

November 24, 1930

Argued October 7, 1930

Appeal, No. 189, March T., 1930, by plaintiff, from judgment of C.P. Allegheny Co., April T., 1928, No. 330, on verdict for defendant, in case of Florence C. Heyman, administratrix of estate of Philip S. Heyman, deceased, v. Albert M Hanauer. Affirmed.

Assumpsit on contract. Before MARSHALL, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for defendant for $25,000. Plaintiff appealed.

Errors assigned were various rulings and instructions and refusal of new trial, quoting records seriatim.

The judgment is affirmed.

Albert C. Hirsch, with him Harold R. Stadtfeld and Watson & Freeman for appellant. -- The conduct of plaintiff with respect to exhibits "G" and "H" is not inconsistent with his present position and does not amount to an admission.

The statements contained in exhibits "G" and "H" made in 1927 do not constitute an admission, and do not contain any assertion concerning, or inconsistent with, the terms of the contract of 1925, which would justify their reception in evidence.

Even if exhibits "G" and "H" otherwise constitute an admission, they are inadmissible because made as a proposition in settlement of a dispute: Sailor v. Hertzogg, 2 Pa. 182; White v. Steamship Co., 102 N.Y. 660.

Plaintiff could not offer an alleged admission in part; he must offer the whole: Yearsley's App., 48 Pa. 531; National Castings Co. v. Loomis-Manning Co., 94 Pa.Super. 309; Kull v. Mastbaum & Fleisher, 269 Pa. 202; McCord v. Durant, 134 Pa. 184; Delmont Gas Coal Co. v. Alkali Co., 275 Pa. 541; Cary v. Cary, 189 Pa. 65.

Gifford K. Wright, for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

On April 3, 1925, defendant sold and assigned to Joseph Steinman his entire interest in a business owned and conducted by him under the name of Hamburger Distillery, Ltd., together with from 25,000 to 30,000 cases of whiskey then in storage. By separate writing bearing the same date, Steinman agreed to liquidate the business and return to defendant one half the net proceeds received and retain the other half in payment for his services. Later, defendant desired to be relieved from the contract, and, with assistance of plaintiff, Steinman was induced to accept a cancellation and in lieu of the agreement purchased from defendant 17,000 cases of whiskey at $14 each. Plaintiff also claimed to have made other sales of the whiskey for defendant, pursuant to an oral understanding with him to pay a commission of 30% on all sales. Defendant, on the contrary, claimed the agreement was that plaintiff should receive a commission of 10% on all sales. An issue of fact was thus presented, whether defendant had promised to pay plaintiff a commission of 30% of the selling price of the whiskey, or whether the agreement was, as contended by defendant, that plaintiff should receive a commission of 10% on sales made by him. Defendant, in addition to denying the contract as alleged by plaintiff, presented a set-off in the sum of $24,620 with interest, which, it was claimed, represented the balance due defendant on account of money advanced plaintiff from time to time as a credit on account of commissions plaintiff expected to earn, the total advanced being $41,621 and the difference of $17,000 to which defendant conceded plaintiff was entitled for services in procuring cancellation of the contract with Steinman and in the sale of 17,000 cases of whiskey. The sole dispute was as to the amount of compensation plaintiff was entitled to receive. The jury accepted defendant's version of the transaction and returned a verdict for him in the sum of $25,000. Plaintiff appealed, assigning for error admission of designated evidence and instructions to the jury relating to such evidence, and also refusal of the court below to grant a new trial.

The evidence objected to consists of unexecuted agreements prepared by or on behalf of Heyman, and submitted to defendant for signature, which however were never actually signed. Plaintiff's argument is not only that this evidence was incompetent, but that the trial judge erred in instructing the jury it was for them to determine what weight should be given to the writings, and in so far as recitals therein favorable to plaintiff were concerned, defendant was not bound by them, because evidence was not offered to show defendant had consented to the language used in the papers. That the relevancy of the writings may be understood, it becomes necessary to refer to the claims of the respective parties. Plaintiff claimed a commission of 30% on the entire 25,000 or 30,000 cases of whiskey which at that time he believed defendant owned or had for sale. It is conceded that 17,000 cases were sold through plaintiff in June of 1925 at $14 a case. According to plaintiff's theory of the contract, defendant owed him $71,400 on this transaction alone. Plaintiff acknowledged he received in 1925 $17,000 of this amount, claiming, however, the amount paid was on account of what was due him, and not payment in full while defendant's contention is that the payment was full compensation for plaintiff's services in connection with the cancellation of the contract and the sale of the 17,000 cases. Plaintiff also acknowledges having received during the year 1926 $14,100, which sum he avers was on account of commissions already earned, while defendant's version is the money was advanced on account of commissions to be earned. Defendant averred the making of further payments in 1927 amounting to $8,120, which is not denied by plaintiff, the contention of the parties with respect to the purpose of these payments being identical with that as to the payments made in 1926. It thus appears that the amounts of the several payments were not disputed, the sole dispute being as to the purpose or the terms of the agreement under which they were made. It was under these circumstances that the papers Exhibits G and H, dated July 7, 1927, and September 17, 1927, respectively, were prepared by plaintiff and submitted to defendant for approval and signature. The first recited that defendant should employ plaintiff for a term of one year to sell the liquor on commissions stipulated, and to advance to plaintiff a stated sum every two weeks, such sum "to be charged against his...