Sherman v. Consolidated Dental Manufacturing Co., Appeal, No. 119

Appeal, No. 119 | Pa. | May 19, 1902

Opinion by

Mr. Justice Mitchell,

The substantial issue between the parties is as to which shall be chargeable with the expenses of the business. The contract provided:

“ IV. The party of the first part agrees to pay to the party of the second part as condensation for his services in selling its goods a sum of money equal to the difference between the list and trade prices of every article so consigned to him.

“V. The party of the second part agrees to send to the party of the first part .... a monthly statement showing the sales .... and to remit with said statement a check or draft for an amount representing the trade price of all goods sold during said preceding month as shown by said statement.” The apparent conflict between these two clauses gives rise to the controversy. If plaintiff is bound to send the full trade price to defendant without deduction for expenses, then he will not be receiving for his services the entire difference between the trade price and the list price as stipulated in clause fourth, while on the other hand if he deducts the expenses, he will not be sending to defendant the full trade price called for by clause fifth. To solve this difficulty we must resort to the language and intent of the whole instrument.

The contract contains no express provision as to expenses. But the business was distinctly and exclusively the defendant’s. The defendant appoints plaintiff “ manager of its branch office at Philadelphia,” and agrees to consign goods to him, which however are to remain the property of defendant, and it is expressly stipulated that plaintiff shall “ take such care of the goods of the party of the first part (defendant) as any reasonable man would do,” and then follow the provisions for “compensation for services” and “rendering statements” already quoted. Prima facie the owner of a business is chargeable with its expenses, and there is nothing in the agreement to take this case out of the general rule. Plaintiff was a mere employee, called manager, but having no ownership or direct interest in the business itself, except so far as the amount of the sales controlled the amount of his compensation. An employee, however large his powers and authority, is not liable for the expenses of the business unless made so by the provisions of his contract. The learned referee was correct in his construction of the agreement.

Even if this were more doubtful than it is, the course of dealings between the parties would be conclusive in favor of the same construction. The referee finds that during the two years that the arrangement lasted, plaintiff sent to defendant monthly accounts of “ cash receipts ” and “ cash payments ” on blanks furnished by the defendant itself for the purpose,- in which under the latter head appeared items “for expenses, for salaries, for rent, for gas lighting,” etc., and plaintiff “ generally each week transmitted the balance ” (after deducting the items for expenses as above) “ by check to defendant.” These accounts and remittances were accepted by defendant without objection. The parties themselves thus gave a practical demonstration of their mutual understanding of the agreement, which neither one can now be allowed successfully to dispute. Judgment affirmed.