F. F. Vandevort & Co. ex rel. Vandevort v. Wheeling Steel & Iron Co.

Opinion by Mr. Chief Justice Sterrett, This suit was brought to recover commissions on a sale of steel by the Wheeling Steel Works to E. W. Clark & Company of Philadelphia, effected on June 29, 1890, through the agency of the plaintiff company. The defendant company afterwards became the successor of the Wheeling Steel Works. In so do [124] ing it assumed that company’s obligations, and is thus rightly on the record as defendant. The only specification of error before us is the refusal of the learned trial judge to affirm defendant’s request for instructions, viz: that “ under all the evidence in the case the verdict must be for the defendant.” As disclosed by the evidence the facts and circumstances of the case, so far as they are material and necessary to a proper understanding of the question presented by the record, are sufficiently stated in the charge of the learned trial judge, and need not be repeated here. After referring, at some length to plaintiff company’s contention that its commissions were earned and payable when it procured an acceptable purchaser for the steel and the cdntract of sale was duly signed by the proper parties, and that its right to recover the residue of its commissions was not in any way affected by the subsequent refusal of the purchasers, E. W. Clark & Company, to accept the greater part of the steel contracted for, etc., he submitted the question to the jury as one of fact for their determination, aiid instructed them, inter alia, as follows : “ Taking the letter, and the conduct of the parties as interpreting the letter, and the fact that this bill of December 30 was rendered .to them in this way, whether or not it was the understanding of the parties that they should be paid whether there was a delivery or not, and Avhether the recovery of damages in the suit, the record of Avhich has been put in evidence here, takes the place of that, and-as you find that you will find your verdict. If you find that this arrangement was that the plaintiff company should be paid at all events when the contract Avas made, or if it was carried‘out in any Avay by getting the value of the contract, then -you will find for the plaintiff for the balance unpaid of twenty-five cents a ton, and if you do not so find, your verdict Avill be for the defendant.” He also referred particularly to .defendant’s contention that certain specified acts, etc., of plaintiff company Avere in bad faith and injurious to the defendant, etc., and therefore plaintiff could not recover. In this connection he refused to charge the jury as matter of law that the plaintiff could not recover, but-recurring to'the same subject at the close of his charge he instructed them as follows: “It is claimed by the defendant [125] that taking the letters which have been put in evidence written by Smith and Mendinliall to Vandevort & Company, together with the actions of Vandevort or Vandevort & Company in Pittsburg, whoever were representing the company in Pitts-burg, towards the Wheeling Steel Company, the letters that they wrote to them or the postponements that were actually procured, taking all that evidence together it tends to show that Vandevort & Company acted in bad faith towards the Wheeling Steel Works. Now the mere letters that Smith & Company wrote to Vandevort & Company I hardly think of themselves amount to bad faith; they amount practically to suggestions of doing things that would not be right. If these suggestions were not followed out and something done upon them, then I take it they would not amount to anything; but if you are of opinion from all this evidence that these suggestions of Smith & Company to put off Wilson & Company and keep these deliveries off were acted upon in any way by Vandevort & Company, or whoever represented them in Pittsburg, and if Vandevort & Company did not act in every way in good faith towards the Wheeling Steel Works, then they are not entitled to recover. That I say is contended by the defendant, and that I will tell you is the law. If you believe that they did not act in good faith, taking the whole of the evidence together, then you will find a verdict for the defendant.” Both questions of fact submitted as above stated were found by the jury in plaintiff’s favor, and inasmuch as no error is assigned to the instructions under which said questions were submitted, the implied finding of the jury as to both must, for the purposes of this appeal, be accepted as correct. But that does not eliminate from this case the question presented by the single specification before us, viz: Whether, in view of all the evidence in the case, oral and written, relating to the alleged bad faith of the plaintiff company and one or more of its members, it was not the duty of the learned trial judge to withdraw the case from the jury by instructing them as matter of law that the bad faith of the plaintiff was a bar to its recovery, and their verdict must therefore be in favor of defendant. In other words, was the question of bad faith one of fact for the jury under all the evidence, or was it a question of law for the court alone? If the learned judge erred in refusing the binding instructions [126] requested by the defendant the judgment should be reversed. After a careful consideration of all the evidence bearing on the subject we are all satisfied that the question was properly one of fact for the jury, and that there was no error in refusing defendant’s point. While the evidence relied on by the defendant does undoubtedly tend to' prove the alleged bad faith of the plaintiff company, we cannot say that it was sufficient, without more, to have warranted the court in directing a verdict for the defendant. Such binding instructions must be based on facts which are either admitted or clearly established by undisputed evidence. When facts are to be found from testimony or inferred from other proved facts or circumstances in the cause, or when general inferences of fact are to be drawn from all the evidence relating to a given question or subject, it is the duty of the jury and not of the court to make such findings and draw such inferences and conclusions oE fact. In yiew of all the items of evidence bearing on the subject of plaintiff’s bad faith in this case we think the learned judge rightly held that it presented a question of fact which should be submitted to the jury. As to whether the jury should have reached a different conclusion from that implied by their verdict or not, we are not required to express any opinion. Judgment affirmed.