246 Pa. 88 | Pa. | 1914
Opinion by
The Commercial Credit Company filed this bill in equity against the Girard National Bank, and the Emporium Iron Company, to determine the ownership of certain moneys in the hands of the bank. The controversy is between the Commercial Credit Company and the Emporium Iron Company. The Girard National
“Third — Sales. The said ‘Agent’ agrees to prosecute diligently the sale of all iron manufactured by the said ‘Company’ and to secure for it the very best price possible, and the ‘Company’ also agrees to refer all inquiries for the purchase of iron that it may receive direct from time to time directly to the ‘Agent.’ The price or prices at which said iron shall be sold shall be mutually agreed upon between the ‘Company’ and its said ‘Agent’ at least once a month, or oftener if necessary.
“Fourth — All pig iron manufactured by the said ‘Company’ shall be billed by it to said ‘Agent’ and payments therefor shall be made by said ‘Agent’ on all orders furnished by them to said ‘Company’ on or before the twenty-fifth day of each month for all shipments made during the preceding month.”
“Seventh — Commissions. The ‘Company’ does hereby agree to pay to the said ‘Agent’ a commission of two and one-half per cent, on the selling price on all iron manufactured by the said ‘Company’ f. o. b. cars furnace.”
The practice under the agreement was as follows: Dimmick & Co. would send an order to the Emporium
The case turns upon the question, whether or not Dim-mick & Co. were properly regarded as purchasers of the iron. If they were, the ownership of the accounts was in them, and their assignment of the bills and accounts, passed a good title to the plaintiff. If not, plaintiff having taken the assignment with notice of the contractual relations between the assignors and the iron company, could not assert title as against the latter. Counsel for appellant contend that Dimmick & Co. were agents of the Emporium Iron Company with a del credere commission. In Black’s Law Diet. (2d Ed. 1910), 347, del credere is defined as follows: “A phrase borrowed from the Italians, equivalent to our word ‘guaranty’ or ‘warranty,’ or the Scotch term ‘warrandice’; an agreement by which a factor, when he sells goods on credit, for an additional commission called a ‘del credere commission,’ guaranties the solvency of the purchaser and his performance of the contract. Such a factor is called a del credere agent. He is a mere surety, liable only to his principal in case the purchaser made default.” In the present case there was nothing in the agreement which made Dimmick .& Co. guarantors of the sales to their customers, nor did their liability to the Emporium Iron Company depend upon any default by the purchaser of
The assignments of error are overruled and the decree of the court below is affirmed, and this appeal is dismissed at the cost of appellant.