266 F. 402 | E.D. Pa. | 1920
The plaintiff claims upon an alleged contract with the defendant, under which the plaintiff was to have the exclusive sale or agency for 56'' MS fabric to be used for linings for horse blankets, and if the defendant quoted any outside parties on the fabric, it would afford the plaintiff a protection of 10 per cent, to its cost to the plaintiff as a profit, and if any outside parties requested quotations, the defendant was to refer them to the plaintiff. If the terms of the contract are found in the letters offered in evidence by the plaintiff, with the parol testimony, the above are the material terms on which the plaintiff relies.
The plaintiff, through its treasurer and general manager, Mr. Lyman, offered evidence of a conversation between the witness and Mr. Gardner, as salesman of the defendant corporation, over the telephone, to the effect that Mr. Lyman had told Mr. Gardner:
“Inasmuch as we had to put in a great amount of missionary work in originating this lining and promoting the sale of it to the government and the contractors, we should pul something in writing to substantiate our verbal or oral agreement to the effect that we were to have the exclusive sale or agency of this lining, and they were to refer all inquiries to us, and in the event of their being asked to quote any one directly, and doing business with them directly, that they were to add a protection profit of 30 per cent., to be paid to us as our commission or compensation for our work in the matter.
“By Mr. Kendrick: Q. Was anything else said at that time? A. He said that that was perfectly agreeable to him, and to write him a letter in sum and substance, which lie would acknowledge.
“Q. Did you write a letter the next day? A. I did; yes, sir. I wrote a letter that day.
“Q. That day? A. Tes; right after our telephone conversation; yes, sir.”
Tlie plaintiff relies for proof that the letters of March 13, 14, and 15, 1918, in connection with the telephone conversation between Mr. Lyman and Mr. Gardner, constitute a contract between the plaintiff and defendant upon the following contentions:
"The rule of law upon the subject of the disaffirmance or ratification, of the acts of an agent required that if they had the right to disaffirm it they should do it promptly, and if after a reasonable time they did not so dis-affirm it a ratification would he presumed,”
In the case of Manning v. Insurance Co., 100 U. S. 693, at page 698 (25 L. Ed. 761), Justice Stronge said:
“The only presumptions of fact which the law recognizes are immediate inferences from facts proved. Remarking upon this subject in United States v. Ross, 92 U. S. 281, 284, we said: ‘Whenever circumstantial evidence is relied upon to prove a fact the circumstances must be proved, and not themselves oe presumed.’ Referring to the rule laid down in Star.kie on Evidence, page 80, we added: ‘It is upon this principle that courts are daily called upon to exclude evidence as too remote for the consideration of the jury. The law requires an open and visible connection between the principal or evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences. Best on Evid. 95. A presumption which a jury may make is not a circumstance in proof, and it is not, therefore, a legitimate foundation for a presumption. There is no open and visible connection between the fact out of which the first presumption arises and the fact sought to be established by the dependent presumption. Douglass v. Mitchell, 35 Pa. St. 440.’ ” "
Applying these principles to the evidence in the present case, it is apparent that the plaintiff failed'in its proof of the alleged contract in two particulars: (1) It failed to prove the authority of Gardner to bind the defendant; and (2) it failed to prove ratification of his acts through notice to the defendant and its failure to disaffirm.
Goitig into the terms of the contract as deduced from the letters and taking the conversation over the telephone into consideration in determining them, they are still vague and indefinite. What, under its terms, were to be the reciprocal obligations of the parties ? Mr. Lyman says:
“We were to have the exclusive sale' or agency of this lining,” and “they were to add a protection profit of 10 per cent., to he paid to us as our commission or compensation for our work in the matter.”
It is not clear whether the.plaintiff was to be the agent of the defendant, or its factor, or a purchaser of the merchandise, or whether it was to be paid the 10 per cent, as a profit upon its sales as a purchaser, or as a commission or compensation, either as the defendant’s agent or as its factor. There is no time stated, either in the letters or in the oral testimony, during which the uncertain relations between the parties were to continue, although it does appear that the “work in the matter,” for which the commission or compensation, it is claimed, was to be paid, was the work done in the past in originating the lining and promoting the sale of it to the government and the contractors.
Under all the terms contended for by the plaintiff, is there any duty or obligation resting upon it, which the defendant could enforce in case of an alleged breach by the plaintiff? I fail to see that .there are any mutual obligations, or that there is any consideration moving from the plaintiff. On the whole, the terms of the alleged contract are, in my opinion, too indefinite and uncertain to he enforced. Butler v. Kemmerer, 218 Pa. 242, 67 Atl. 332; Briggs v. Morris, 244 Pa. 139, 90 Atl. 532.
The motion to take off the nonsuit is denied.