Opinion
October 10, 1934.
November 26, 1934.
Contracts — Consideration — Meeting of condition imposed — Sale of distribution agency — Condition imposed by newspaper — Promise to return agency if purchaser does not pay — Evidence — Prior negotiations — Authority of circulation manager — Evidence — Authority of manager.
1. Where the plaintiff, owner of a newspaper distributing agency through which defendant's newspaper was circulated, sold such agency to a purchaser who agreed, as a condition of the transfer of the agency required by the defendant, to furnish a separate distributing medium for defendant's paper, and defendant agreed to return the agency to the plaintiff if the buyer failed to pay the balance of the purchase price, the meeting by the plaintiff of the condition previously imposed by the defendant as precedent to its consent to a transfer of the newspaper agency, was a consideration moving to defendant and sufficient to support its promise. [534]
2. In such case, evidence that the plaintiff had dealt with the circulation manager of defendant, who made the promise on behalf of defendant, for several years, and that the circulation manager had supervision over and selected the distributing agencies, and that he could revoke the appointment of distributors or impose conditions upon which distributors might transfer their business to a successor, is sufficient to support a finding that the agreement of the circulation manager was within his apparent authority. [534-5]
Corporations — Evidence — Authority of manager — Scope of authority — Scope of agency for jury.
3. Where a corporation intrusts a manager with general supervision of a particular branch of its business, it invests him with the power of a general agent coextensive with business intrusted to his care and is bound by his contracts on its behalf made within the apparent scope of his authority, and the scope of the agency is for the jury. [535]
Argued October 10, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 247, March T., 1934, by defendant, from judgment of C. P. Allegheny Co., July T., 1931, No. 2462, in case of Leo T. Bowman v. Press Publishing Company. Judgment affirmed.
Assumpsit on oral contract. Before PATTERSON, J.
The facts are stated in the opinion of the lower court, E. W. MARSHALL, PATTERSON and GARDNER, JJ., in opinion by PATTERSON, J., as follows:
Plaintiff, for several years prior to March, 1929, owned a newspaper distributing business or "agency," so called, in the Borough of Dormont, Allegheny County, Pennsylvania, through which, with other publications, defendant's paper, daily and Sunday, was distributed to retail venders, as well as to individual subscribers. In July, 1928, plaintiff was desirous of disposing of this business and had purchasers therefor, but the deal fell through. Plaintiff avers its failure was due to defendant's refusal to transfer the agency, insisting upon a separate distributing medium for its paper. Defendant denies this. Plaintiff contends that defendant at that time undertook to procure a purchaser but failed. This, also, defendant denies.
In March, 1929, plaintiff procured a prospective purchaser in a certain Kenneth George, who agreed to pay $6,750 for the agency, of which $2,000 was cash, the balance to be paid in monthly installments. Plaintiff took the purchaser to defendant's circulation manager, W. L. Test, to whom the purchaser appeared to be satisfactory. It is contended by plaintiff (and this is the issue) that defendant's circulation manager then took him aside and agreed that if George failed to pay the installments, the defendant would return the agency for its paper to the plaintiff. After paying $2,750.00, George defaulted. Defendant refused to return the agency to the plaintiff. This suit followed. A verdict in favor of the plaintiff in the sum of $5,295.54 resulted and motions for judgment n. o. v. and a new trial have been filed.
Defendant's motion for judgment raises two questions of law. The first is that the circulation manager of defendant's publication had no real or apparent authority to make the oral agreement here in suit. The second is that the agreement was without consideration. We can accord merit to neither.
We consider first the question of consideration. It appears in the evidence on behalf of plaintiff that in July, 1928, plaintiff had a purchaser, but defendant's circulation manager imposed conditions that could not be met (page 39a). The circulation manager agreed to get plaintiff a buyer (page 40a). In 1929, plaintiff found a purchaser who would meet the conditions imposed (page 41a) and when the parties consulted with defendant's circulation manager, the latter signified his willingness to accept the buyer (page 42a) because the Press wanted separate distribution (page 42a). Thereupon, plaintiff agreed to turn over his route list and everything pertaining to the agency (page 42a). In passing upon a motion for judgment n. o. v., we must assume all evidence favorable to plaintiff to be true and that which is unfavorable must be rejected: Dunbar v. Preston, 285 Pa. 502; Vendig v. Union League, 291 Pa. 540. Thus considered, it readily appears that defendant imposed conditions to be met as necessarily precedent to its consent to the transfer of the newspaper agency. The meeting of these conditions by plaintiff was a consideration moving to defendant.
As to the apparent scope of the circulation manager's authority to bind defendant, it was a question of fact under the particular circumstances of this case and was submitted to the jury in the plainest possible terms (page 167 et seq.). The fact and scope of agency are for the jury, where they are to be established by parol evidence and surrounding circumstances (Humbert v. Meyers, 279 Pa. 171, 176) and the burden is on the plaintiff in such case: American Car Foundry v. Alexandria Water Company, 218 Pa. 542.
Admittedly, Test was defendant's circulation manager. Plaintiff had dealt with him as such for several years. He had supervision over distributing agencies; he selected the mediums and the distributors; the collection and circulation supervisors were under his direction and he could appoint and revoke the appointment of distributors; he met with circulation managers of other papers as to their coœperation, and he could, and in this case did, impose conditions upon which distributors might transfer their business to a successor. Certainly the authority to do these things must, of necessity, endow him with the correlative authority to say that upon a certain contingency he would revoke George's agency and return it to plaintiff. It was not a guarantee of payment and, as a matter of law, the circulation manager could not have bound his principal by guaranty; but, as to those things which came within his authority, his undertaking was binding. Where a corporation intrusts a manager with general supervision of a particular branch of its business, it invests him with the power of a general agent coextensive with business intrusted to his care and is bound by his contracts on its behalf made within the apparent scope of his authority, and the scope of the agency is for the jury: Farneth v. Credit Co., 313 Pa. 433, 169 A. 89. We conclude, therefore, that motion for judgment n. o. v. must accordingly be overruled.
Defendant's contention that the contract was void under the statute of frauds was ruled on preliminary motion by MacFARLANE, J., against defendant and needs no discussion here. We do not agree with defendant that the trial judge erred in admitting evidence of plaintiff's negotiation for sale of his business in 1928. It was material and relevant in that it disclosed the consideration which motivated the contract in suit, viz., a separation of Press distribution from that of other publications. Nor can we see that the verdict was against the weight of the evidence. There was ample competent evidence in plaintiff's behalf of a contract in definite terms, as well as evidence of the circulation manager's apparent authority to make such a contract. If the jury believed this evidence, the verdict is justified. The measure of damages was the loss occasioned by the alleged breach and this was to be determined by the value of the business which should have been returned to plaintiff if the contract was good, not to exceed, however, the balance due plaintiff from the purchaser, this balance operating in limitation of the loss. This was all submitted in a charge concerning which there is no complaint and we are of opinion that we may not now disturb the verdict.
Verdict for plaintiff and judgment entered thereon. Defendant appealed. Error assigned, inter alia, was refusal of judgment n. o. v., quoting record.
William H. Eckert, with him David B. Buerger, of Smith, Buchanan, Scott Gordon, for appellant.
Clyde A. Armstrong, of Thorp, Bostwick, Reed Armstrong, for appellee, was not heard.
The questions involved in this appeal are fully and correctly disposed of in the opinion of the court below by Judge PATTERSON.
The judgment is affirmed on that opinion.