Standard Life Insurance Co. v. Carey

• Decision Date: 16 March 1925
• Docket Number: 110
• Citation: 128 A. 537,282 Pa. 598
• Parties: Standard Life Insurance Co. v. Carey
• Court: Pennsylvania Supreme Court

128 A. 537

282 Pa. 598

Standard Life Insurance Co. v. Carey

No. 110

Supreme Court of Pennsylvania

March 16, 1925

Argued February 2, 1925

Appeal, No. 110, Jan. T., 1925, by defendant, from order of C.P. No. 2, Phila. Co., June T., 1920, No. 3834, dismissing exceptions to report of referee, in case of Standard Life Insurance Co. v. Lawrence F. Carey. Affirmed.

Assumpsit on contract.

Exceptions to report of Walter C. Douglass, Jr., Esq., referee. Before STERN, P.J., and LEWIS, J.

The opinion of the Supreme Court states the facts.

Exceptions dismissed. Defendant appealed.

Error assigned was, inter alia, order, quoting it.

The judgment of the court below is affirmed.

George J. Edwards, Jr., with him Hiram B. Calkins and Leighton P Stradley, for appellant. -- The contract in suit was intended to continue for the life of the defendant: Rossmassler v Spielberger, 270 Pa. 30; Nolle v. Mut. Union B. Co., 264 Pa. 534; Weidman v. United Cigar Stores Co., 223 Pa. 160; Riefkin v. Dupont De Nemours & Co., 290 F. 286; Galey v. Mellon, 172 Pa. 443; Franklin Telegraph Co. v. Harrison, 145 U.S. 459.

Plaintiff is limited to the reason assigned by it at the time in seeking to justify cancellation of the contract. The reason so given is insufficient, and its other grounds as well: Honesdale Ice Co. v. Imp. Co., 232 Pa. 293; Haney v. Hatfield, 241 Pa. 413; United Fruit Co. v. Bisese, 25 Pa.Super. 170.

The expense allowance to defendant was a privilege provided for by the contract, and no contract by which he agreed to repay the amounts claimed by plaintiff is alleged, or proved: Hertzog v. Hertzog, 29 Pa. 465; Powers v. Curtis, 147 Pa. 340.

F. S. Edmonds, of Edmonds & Obermayer, with him Frederick H. Knight, for appellee. -- The contract of agency entered into between the plaintiff and defendant on January 14, 1913, and the modifications thereto were terminable at will; and plaintiff, by terminating the relationship, violated no contract and incurred no liability; Hogle v. Hook & Eye Co., 248 Pa. 471; Weidman v. United Cigar Stores Co., 223 Pa. 160; Kirk v. Hartman, 63 Pa. 97; Press Pub. Co. v. News Agency, 44 Pa.Super. 428; Hanger v. Fitzsimmons, 273 F. 348; Haldeman v. Machinery Co., 80 Pa.Super. 578; Fay Gas Fixture Co. v. Light Co., 189 Pa. 20; Coffin v. Landis, 46 Pa. 426; Wilcox & Gibbs Sewing Machine Co. v. Ewing, 141 U.S. 627; Dickson v. Mfg. Co., 179 Pa. 343.

The contract of agency entered into between plaintiff and defendant on January 14, 1913, and the modifications thereto were terminable by plaintiff for cause without any liability by reason of such termination; and sufficient cause existed to justify the dismissal: Macfarren v. Gallinger, 210 Pa. 74; Carson v. Hosiery Co., 15 Pa.Super. 476.

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

OPINION

MR. JUSTICE FRAZER:

This action is based on a contract wherein plaintiff employed defendant as its agent to solicit insurance, and was brought to recover various items claimed to be due from defendant on an open account between them, and the further sum of $25,000 damages for breach of contract by defendant. The latter's affidavit of defense denied any amount due plaintiff and set up a counterclaim for damages in the sum of $200,000 for alleged breach of contract by plaintiff in wrongly dismissing defendant.

The case was, by agreement, submitted to a referee who, after hearing the evidence, found in favor of plaintiff for the several items of indebtedness set forth in its statement, exclusive of the claim for damages. Exceptions filed by defendant were dismissed by the court and judgment entered for plaintiff, from which defendant appealed.

In a stipulation signed and filed by attorneys for the parties it is conceded that all items included in the award in favor of plaintiff were proper with the exception of the sum of $1,819.55, representing the amount of monthly payments advanced to defendant during the continuance of the contract, and agreed that, if the court should be of opinion that plaintiff was not entitled to be repaid this amount, it should be deducted from the judgment entered by the court below, otherwise the judgment should stand as rendered, subject to the decision of the court on the question of defendant's right to recover on his counterclaim.

The contract, dated January 14, 1913, provided, inter alia, for the appointment of defendant as plaintiff's agent, with power to designate and employ subagents for the purpose of soliciting life insurance within the territory specified which was "assigned exclusively to the agent for the purpose hereinbefore mentioned, upon condition that the company shall receive from the agent and his subagents, during each twelve months . . . an amount of insurance aggregating $500,000. In the event of the failure of the agent to comply with this condition as to quota, the territory herein assigned to the agent shall thereupon cease to be exclusive to said agent," and reserving the right to the company to employ other agents within that territory. It was further provided that "in the event of the termination of this contract by death or otherwise," the company would pay to the agent "or to his heirs, executors, administrators or assigns, as the case may be," specified commissions. These commissions varied from 60 to 80 per cent of the premiums paid by the insured to the company during the first year, and from five to seven and one-half per cent on renewals subsequent to the first year, and continuing while the policies remained in force. Also that "In event of the assignment of this contract as hereinafter provided by the agent to the East Penn Securities Co." the commissions should be paid to that company or to its successors "both during the continuance and after any termination of this contract." Defendant also agreed "to use his best endeavors to fulfill the obligations of this contract, and to obey and observe all the instructions, rules, and regulations of the company, and [to] devote his entire time and best energies to its interests during the time that he has exclusive rights as soliciting agent in the territory assigned to him as herein provided, acting exclusively for it and not tendering any application for insurance in any other company, unless first offered to and declined by the company," and, during the time defendant should act as soliciting agent for plaintiff, "use his best endeavors" to avoid any lapse of policies written, and, "in the event of the agent's terminating this contract so far as continuing as soliciting agent for the company as provided herein, the company shall have the right to deduct, from any future renewal commissions due hereinunder, the amount of any office rent the company may be obliged to pay during the unexpired term of any lease the agent may at that time have...