271 Pa. 394 | Pa. | 1921
Opinion by
Plaintiff is engaged in the business of mining and selling coal, while defendant is a jobber in coal but not a
In November, 1918, defendant received from the Le-high Coke Company the sum of $79,488.13, due for current shipments, but refused to remit to plaintiff with the usual deduction of ten per cent commission, claiming a set-off in excess of the above' amount by reason of a shortage in previous shipments of coal under the contract. Plaintiff thereupon brought suit for the price of the coal against defendant, “as-the agent for the plaintiff as the undisclosed principal,” averring that the only interest of defendant in the contract was the right to receive a commission of ten cents per ton. Defendant denied agency and averred that in making the contract it acted on its own account. The jury found for plaintiff in the total amount of its claim, with interest, amounting in all to $85,008.49. Motions for a new trial and for judgment non obstante veredicto were subsequently made and dismissed by the court below, and defendant has appealed.
■ The right of set-off for plaintiff’s alleged breach of contract to ship depended upon whether defendant had an interest in the agreement as principal, or whether it acted merely as plaintiff’s agent. The principal contention of defendant in support of the motion for judgment non obstante veredicto is that the contract between the parties is in writing, with its terms clearly expressed, and shows defendant was an independent contractor or jobber and not in any sense the agent of plaintiff company and that parol evidence could not be considered to contradict the terms of the writing in this respect. In support of its position numerous cases were cited involving the application of the parol evidence rule, and recent decisions in Atchison v. United Presbyterian Board, 266 Pa. 47, and Lenox Coal Co. v. Duncan-Spangler Co., 265 Pa. 572, holding that only in cases of doubt or where
In our opinion there exists in the present contract such ambiguity as will permit the introduction of evidence to show the construction placed upon the writing by the parties. The agreement between plaintiff and defendant is made up of the written contract between defendant and the Lehigh Coke Company and the two letters passing between plaintiff and defendant with reference to the agreement, extracts from which are quoted above. These documents, considered together, are as consistent with the theory of agency as with the theory that defendant was acting on its own account as principal. Several expressions used can be explained only on the ground that they were presumably made by a person prepared, not only to ship, but to mine the coal and as it is conceded defendant was merely a broker and owned no mines this is a circumstance to be considered in
The case was carefully submitted in an elaborate charge in which the respective contentions of the parties and their legal rights were clearly defined.
The judgment is affirmed.