Swing v. Bates Machine Co. , 32 Pa. Super. 403 ( 1907 )

Opinion by

Henderson, J.,

The principal question in this case was whether H. M. Sciple was the agent of the defendant or was held out by the latter to be its agent. The contract declared' upon purported to be made for the defendant by Sciple. The defendant is a foreign corporation and it was conceded at the trial that Sciple was its registered state agent in Pennsylvania. There was some evidence that he was held out to be the commercial agent also of the defendant. With the knowledge and consent of the defendant, which was a manufacturer of high grade, heavy duty Corliss engines and boilers, he was advertised by letterheads as the manager of its eastern sales department. A letterhead of the defendant offered in evidence gave notice that it dealt in Corliss engines, complete power plants and general machinery. One of the receipts given by the plaintiffs for $1,000 paid on the contract was to the Bates Machine Company on account of work at Hampton, Yirginia. Jones, who worked for Sciple, testified as follows with reference to the work at Hampton of which the plaintiff’s undertaking constituted a part:

“ Q. With the exception of those details to which you refer, the work had been completed there, had it? A. Yes, sir. Q. That is, both by Swing & Bateman and by the Bates Machine Company? A. Yes; except in so far as the plant, up to the time I severed my connection with Mr. Sciple, hadn’t been in operation under load.” The record also shows that Sciple filed the affidavit of defense for the defendant. It is contended that the authority shown was only that of a “ selling ” agent and that the contract declared upon was not within the scope of that authority. In view of the nature of the defendant’s business as indicated by the letter-heads it does not necessarily or logically follow that the work undertaken by the plaintiff might not be connected with the delivery of engines or other machinery by the defendant. It cannot be certainly said, therefore, that the contract in question was not within the range of the defendant’s operations. The evidence for the defense clearly shows a limitation of the powers of the agent, Sciple, and there is a direct denial that the company was engaged in business of the kind involved in the contract. These contradictions of the plaintiff were for the jury, and the instruction of the court and the answers to the defendant’s points with reference thereto were as favorable to the defendant as could have been desired. There was also evidence that the work undertaken had been finished, except as to some minor details. Jones testified that it had been completed exceptas to some faulty valves and perhaps the pipe covering. This tends to show that there was substantial performance of the contract, and under the authority of Snodgrass v. Gavit, 28 Pa. 221, and Filbert v. Philadelphia, 181 Pa. 530, it was the duty of the defendant to show the amount of deduction which should be made from the contract because of the plaintiff’s omission, there being no evidence of an intentional departure from the terms of the contract. The undertaking involved a considerable outlay in the construction of a power plant and the jury would have been warranted in concluding from the testimony of Jones that the incompleted or defective part was inconsiderable. The 11th assignment must be sustained. The defendant asked the court to say to the jury that if they found that the defendant made the contract and is liable to the plaintiff, the latter is not entitled to the full amount of his claim, but that the sum of $226 should be deducted for defective work, concerning which testimony was introduced by the defendant. This the court declined to do for the reason that such instruction would be inconsistent with the defense set up which was that it did not make the contract with the plaintiff. The court was of the opinion apparently that because the defendant denied that it made a contract it could not be permitted to show failure of performance by the plaintiff even if the jury should find that the contract was entered into. The very root of the plaintiff’s allegation was that a contract was made with the defendant and that the latter was liable for the contract price. Two defenses were open: one that the contract was not executed as claimed by the plaintiff; the other that the plaintiff had failed to perform according to the contract. The plaintiff could only recover by showing that the defendant contracted. ■ If the contract was shown to exist the defendant was bound to pay, but only according to the terms of the agreement, and if that was not carried out by the plaintiff the defendant was entitled to show such failure of performance. The 1st and 4th assignments relate to the rulings of the court on the admission of evidence and do not require attention in view of the reversal of the case. The admission of the statement of claim for the purpose of showing credits thereon did the defendant no harm, however. It was not admissible to support the plaintiff’s claim and need not have been offered by the plaintiff to show credits, as the defendant could have taken them as admitted by the plaintiff.

The judgment is reversed and a venire facias de novo awarded.