Restein v. McCadden & Bro.

Opinion by Mr. Justice Green, The learned court below was not mistaken in speaking of the contract as a matter that was not in dispute. It was proved by. the plaintiff, and also by Mr. Kolb, who gave the order written by himself, at the instance of the plaintiff, and it was admitted by the defendants in their affidavit of defence, and further, proved on the trial by their agent Leslie, who made the contract with the plaintiff. According to all of this testimony the plaintiff obtained for the defendants, from Kolb, an order in writing for [343] 150 gross of kites at $2.25 per gross, and delivered it to the defendants who accepted it. Leslie, on cross-examination, was asked: “Q. You accepted the order in which-Mr. Kolb agreed to pay you $2.25 ? A. Yes, sir. Q. And you were to pay him fifty-five cents? A. Yes, sir; when the goods were delivered and paid for.” The defendants then undertook to fill the order, and they made and delivered 54 gross of the kites. The purchaser Kolb, and his bookkeeper Connor, testified that they would not receive them because they were not properly made, they would not fly after repeated efforts. Kolb also testified that he was anxious to have them and would still take them at the time of the trial if they were so made that they would fly. Of course this testimony raised a question whether the kites were properly made so that Kolb ought to have received them. But with that question this plaintiff has nothing to do. He procured the customer and the defendants accepted him as a purchaser, received his order and undertook to execute it, and upon all the authorities the plaintiff had then earned his commission. Keys v. Johnson, 68 Pa. 42; Reed’s Exrs. v. Reed, 82 Pa. 420; Sweeny v. Oil Co., 130 Pa. 193; Mechem on Agency, sec. 967. Nor does it matter whether there was á controversy on the testimony as to when the commission was to be paid.' That question was left to the jury by the learned Court below, but it is perfectly apparent that the defendants could not relieve themselves of their liability for the commission by saying that the commission was not to be paid until the goods were delivered and paid for, when the very controversy between them and the purchaser was only upon the question of a defective execution of the order. If the goods were properly inade, they could compel the purchaser to pay for them or pay them compensatory damages. If they were not properly made they could recover nothing from the purchaser, but that result would flow from their own negligence. But the plaintiff has no concern with either of these questions. Judgment affirmed.