No. 2; Appeal, No. 177 | Pa. | Apr 29, 1901
Opinion by
We are not satisfied that the referee erred in finding that the defendant company was not bound by knowledge of the entries in the books as to the taxes. The circumstances were peculiar. Everything was in the hands of the plaintiff. As to real ownership, Balfour was the company, but as to management the plaintiff was the company. The books though nominally the books of the company were in fact his books, kept by his employees under his orders and supervision. The entries therefore were evidence against him, but only in a limited and qualified way evidence for him. Clark, though the secretary of the company, was a mere figurehead wholly under the domination and control of plaintiff who put him in his position, paid his salary and gave him his orders. In regard to this very subject of the charge of the taxes against the company, Clark testified that Balfour told him counsel had advised that such charge was wrong and asked, “ What do you think about it? I said I was hardly capable of judging. ... I told him it would be a matter for him to see Mr. Kane about.” This is not the language of an officer of the company taking care of its interests, but of an employee taking orders from Kane as his employer.
Cotemporary construction of a contract by acts of the parties is entitled to very great weight, but it ought to appear with reasonable certainty that they were acts of both parties, done with knowledge, and in view of a purpose at least consistent with that to which they are now sought to be applied. In the present case there was no ratification shown or even knowledge of the entries as to taxes, which was sufficient to establish a
On the meaning of the words, “ all expenses of the company ” as used by the parties, we entertain no doubt. The effect of the contract was that plaintiff was to run the entire business as sole manager, was to take twenty per cent of the gross premiums received, pay the expenses and keep the balance saved as his compensation. The expenses meant everything paid out in the course of the business for the purposes of running it, all costs, outlays and charges incident to its maintenance and prosecution.
Prima facie everything which the company would have had to pay out in the prosecution of the business in the ordinary way, was a part of the “expenses of the company” which by his contract the plaintiff assumed. Taxes were a part of such expenses due annually as part of the price of doing the business, just as a license fee would be in the case of auctioneers or dealers within the license tax statutes. The parties in their contract made certain specified exceptions, and thereby excluded all others.
Appeal dismissed at costs of appellant.