Aikins v. Thackara Mfg. Co.

Opinion by W. D. Portee, J., The plaintiff was employed by the defendant company, his compensation to be determined by commissions upon the sales which he effected, and this action was brought to recover a balance alleged to be due him. The defendant company, in its printed history of the case, admits that the only sales, as to the right of the plaintiff to commissions on which the jury were called upon to pass, were upon orders which had been presented to and accepted by the defendant company. The contract under which the parties acted was verbal. The plaintiff contended that the agreement was that his commission should be payable when the orders for the delivery of the goods were accepted by the defendant company. The defendant company contended that the contract was that the commissions should be paid only after there had been an actual delivery of the goods and they had been paid for. The language of the court, which is the subject of the first assignment of error, if it stood alone might be subject to criticism, but taken in connection with the instructions by which it was immediately followed, it was a fair presentation of the law which was applicable to the evidence, upon the plaintiff’s allegation as to the terms of the. contract. The jury were told that it was the duty of the plaintiff in making •sales to select responsible parties to whom consignments of goods could safely be made, and that the defendants were not to be held liable to pay commissions on sales made to irresponsible or insolvent parties. As the conclusion of the whole matter upon this branch of the case the learned judge said to the jury: “ If you believe his testimony in relation to the terms of the contract to be true, the defendants would be liable to him for all commissions on all proper sales effected by him whether they were completed by the delivery of the goods or not. It was the business of the defendants to fill the orders if the sales were made to proper and responsible parties, and they would not be relieved from liability to the plaintiff for compensation by reason of nondelivery, if he made the sales to proper parties and those sales [254] were approved by the company when he brought the orders in. If you believe his story, as to the contract, it is not necessary for him to show that those goods were actually delivered. Under the law of Pennsylvania a sale has been defined to be a transfer of the absolute title to the property for a certain agreed price. This is entirely in harmony with the decision of the Supreme Court in Restein v. McCaddem, 166 Pa. 340. Under this instruction the plaintiff could only recover commissions upon sales which he made to responsible and solvent parties. It being admitted that all the orders upon which commissions were allowed had been approved by the defendant company, it was simply a case where the salesman had procured the customer who was solvent and responsible and the defendants had accepted and undertaken to fill the order. “ If the goods were properly made, the defendants could compel the purchaser to take and 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 follow from their own negligence. But the plaintiff had no concern with either of these questions.” The first and second specifications of error are without merit. The language of the court which is complained of in the third assignment of error, in effect instructed the jury that if they accepted the theory of the defendant company, that the commissions were only to be paid when actual deliveries were made, unless the defendants, by reason of their own fault or negligence, arbitrarily refused or declined to deliver the goods, was as favorable as the defendants had any right to demand. If the contract was that the commission should only be paid when the goods were delivered, the defendants could not arbitrarily refuse to deliver and thus deprive their employee of all compensation for his labor. If the contract was as they asserted it to be, it then became their duty upon accepting the orders to make all reasonable efforts to deliver the goods in accordance therewith, and if they arbitrarily refused or declined to deliver the goods, they could not escape liability to pay commissions : Lindsay v. Carbon Steel Company, 195 Pa. 120. The learned judge of the court below accepted and affirmed the legal definition of a sale as stated in the defendants’ point, the answer to which is made the subject of the fourth assign [255] ment of error. The appellant has no fault to find with the instruction of the court as to what constituted a sale, but complains that the court did not, in applying the legal principle to the evidence, arrive at the conclusion that the plaintiff was not entitled to commissions unless there had been an actual delivery of the goods. To have affirmed the point without qualification would have been to have disregarded the contradictions in the evidence as to what the contract was, and to have disregarded the authority of the cases above cited. All the assignments of error are overruled. The judgment is affirmed.