62 Pa. Super. 478 | Pa. Super. Ct. | 1916
Opinion by
The evidence in this case warranted these findings: that the plaintiff, a wholesale dealer in drugs and cigars at New Orleans, and a distributor of cigars among the druggists and cigar dealers of the South, purchased from the defendants, manufacturers of cigars at Philadelphia, 100,000 cigars at the price of $3,751.10, which were delivered and paid for in full; that in negotiating the sale, and as part of the inducement to purchase held out to and relied on by the plaintiff, McArthur, the defendant’s salesman, agreed that if the plaintiff would make the purchase he, McArthur, would meet the goods on their arrival at New Orleans, would remain there
A question was raised on the argument as to McArthur’s authority to make the agreement, but no such question was raised in the course of the correspondénce between the parties. On the contrary his authority was impliedly recognized. Thus, when the plaintiff notified the defendants of McArthur’s default, and that it would have little chance of building a satisfactory business “without special work such as McArthur promised” the defendants replied: “We appreciate your position and are willing to do- anything that is fair, and we feel assured that you do not want anything that is not so.” Again, in a later letter from the plaintiff to the defendants the former stated with particularity what McArthur had promised, alleged his failure to carry out this promise, and called attention to the consequent injury, and concluded by saying “so that we feel that you should be willing to meet us half way and do something toward making good his contract.” To this the defendants replied: “In regards to the goods Mr. McArthur failed to sell through his efforts, and as you know we are very anxious to have this account a success; we will allow you 5% on all goods you have purchased up to date. Of course we have more than paid this commission to Mr. McArthur, but there is no reason why you should stand for his neglect; therefore we will stand the loss.” Construing these letters in conjunction they clearly imply an assertion by the plaintiff and an admission by the defendants of the breach, of the contract, by reason of McArthur’s default, and the defendants’ consequent liability. But the damages were unliquidated and probably difficult of exact ascertainment. ■ They could q®1j;
Bearing in mind that the action was founded on the ■settlement agreement, the variance between, the statement and the proof as to the date of the oral contract made through McArthur, which is declared on by way of inducement, was not fatal.
The assignments are overruled and the judgment is affirmed.
The opinion in the above mentioned case was written by Judge Bice, to whom the case was duly assigned for that purpose during his term of office, and is now adopted as the opinion of the court.
By the Court.