Alcorn v. Christian

4 Pa. Super. 594, 1897 Pa. Super. LEXIS 170

• Court: Superior Court of Pennsylvania
• Decided: May 10, 1897
• Docket: Appeal, No. 169
• Status: Published

Opinion

Opinion by

Wickham, J.,

The appellant, a commission broker in Philadelphia, sent to George H. Christian, a miller of Minneapolis, Minnesota, certain orders for flour which the latter accepted. By these acceptances he became liable, presently, to the appellant for a commission of ten cents per barrel on the order of each customer, and apparently is yet so liable for the commissions unpaid. Before lie had paid the appellant in full, he transferred his mill and business including the orders, to George C. Christian, the defendant in this suit. The defendant took possession on October 17, 1894, and on November 14 of the same year wrote the appellant, “ On all orders placed on our books before I took possession of the mill October 17th, you will receive commissions, no matter when the flour is to be shipped. On airy orders which 1 may have obtained by direct communication after October 17th I canallowno commission.” On January 21,1895, the defendant again wrote the appellant, refusing for reasons given, to pay commission on certain of the sales covered by the promise contained in the first letter, but admitting his general liability under that promise, while denying having made any contract with the appellant. If the defendant were liable at all to the appellant, the latter was entitled to recover $246.10, the amount allowed by the jury.

The above are the material facts contained in the special verdict. At first glance it would seem that the question of law reserved at the trial involves an examination of all the evidence in the case, but a closer view sufficiently shows, that the decision of the jury rests, and was intended to rest, solely on the facts specially found, and that they alone are to be considered in passing on the reserved point, namely: “ whether there is any evidence in the case to be submitted to the jurj1- upon which the plaintiff is entitled to recover.” This comment is suggested, not because we think any necessary fact was omitted from the verdict, or that a consideration of the whole evidence would strengthen the appellant’s cause, but to relieve the reserved point from any objection that might be made to it, based on the ruling in Yerkes v. Richards et al., 170 Pa. 346. It was there held, that a point reserved in the words of the one before us which was evidently copied from one, held to be good, in Newhard v. P. R. R. Co., 153 Pa. 417, was not sufficient, in the .absence of a distinct statement of the facts to which it was intended to apply. As the case of Newhard v. P. R. R. Co. was unavailingly cited and relied on, by counsel, at the argument of Yerkes v. Richards et al., it would seem to be impliedly overruled in respect to the matter now under consideration.

The liability of the defendant must be sought for in his two letters above mentioned. He had no contract with George H. Christian the original debtor of the appellant to pay the latter anything. It does not appear that the appellant retained any control over the orders. He could neither withdraw nor transfer them. When he placed the orders with George H. Christian he ceased to have any further interest in them, and had fully earned his commissions: Restein v. McCadden & Bro., 166 Pa. 340. The defendant’s promise was purely gratuitous, an agreement without any apparent consideration, to pay the antecedent debt of another and, therefore, as the learned judge of the court below has clearly shown, cannot be enforced. It is no more binding in law than would be a gratuitous promise of the buyer of a farm, to pay for seeds sold to a former owner, and which were growing plants when' the land was purchased, or a like agreement to compensate the plowman who had prepared the fields for the sower. The “ obligation ” mentioned in the second letter evidently refers to the promise contained in the first. If it does not, then we must wander in the regions of conjecture in search of its meaning.

Conceding that tire facts set forth in the finding of the jury create a suspicion that some consideration existed for the promise, this is not enough to rest upon, nor is the plaintiff aided by the seeming dishonorable nature of the defense. It is a complete legal defense, and therefore the courts are bound to respect it.

Judgment affirmed.