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TATE v. SHOBER

July 20, 1943

TATE et al.
v.
SHOBER



The opinion of the court was delivered by: BARD

This is an action for damages for breach of an alleged oral agreement by the defendant to pay $5,000 for an assignment of five exclusive agency contracts for the sale of coal. I make the following special

Findings of Fact.

 1. Plaintiff Tate is a citizen of Ohio; plaintiff Wattles is a citizen of New York; plaintiff Continental Collieries, Incorporated, is a corporation incorporated under the laws of Delaware; defendant is a citizen of the Commonwealth of Pennsylvania; and the matter in controversy exceeds, exclusive of interest and costs, the sum of $3,000.

 2. In and prior to March 1938 plaintiff Continental Collieries, Incorporated, was engaged in the business of selling bituminous coal as sales agent for various producers of such coal.

 3. In and prior to March, 1938, plaintiff Wattles was engaged as sales agent for producers of bituminous coal and as New York representative of other such sales agents.

 4. Between March 10, 1938, and October 6, 1938, plaintiff Wattles procured exclusive sales agency contracts for four mines in Tioga County, Pennsylvania, in which contracts plaintiff Continental was named as the sales agent.

 6. Plaintiff Wattles also negotiated with Patrick B. Brown, Harold Weikel and Willard P. Wolfe for the purpose of obtaining for Continental a similar exclusive selling agency contract for the coal to be mined at a mine located at Antrim, Pennsylvania. On August 30, 1938, these parties sent the following letter, from Antrim, to Wattles:

 "Mr. F. M. Wattles, Sales Agent,

 "Continental Collieries,

 "17 E. 42nd Street,

 "New York City

 "Dear Sir:

 "A corporation about to be formed, the principles of which are Patrick B. Brown, Harold Weikel, and Willard O. Wolfe desire to enter into a sales marketing agreement for the sale of coal from property now under lease at Antrim, Pa., with yourself and principals, the Continental Collieries, Inc., Cincinnati, Ohio.

 "This coal to originate on the 4,000 acre Howell & Sill tract and to be put through the Cleaning and Sizing tipple at Antrim, Pa.

 "It is understood that the basic points will be along the lines of past agreements under which we have done business. It is our absolute satisfaction with your past handling of our coal that motivates entering this new sales agreement.

 "As soon as our corporation charter is in effect we will arrange and sign a sales contract.

 "Very truly yours,

 /s/ "Patrick B. Brown

 /s/ "Harold Weikel

 /s/ "Willard O. Wolfe"

 7. In consideration of Wattles' services in procuring these contracts and the letter referred to in the previous finding, plaintiff Continental entered into contracts with Wattles to pay him half of the net proceeds received from the sale of the coal of these mines, and constituted Wattles its New York sales representative.

 8. Defendant, in 1938 and thereafter, was a partner in a firm engaged in selling iron, coal, and other commodities.

 9. In the latter part of 1938 Wattles interested defendant in financing the increased production for sale of Tioga County coal.

 10. On or about January 4, 1939, defendant and Wattles went to the offices of Continental in Cincinnati, Ohio, where defendant orally agreed to purchase assignments of Continental's right, title and interest in the five exclusive sales agency "contracts" for $5,000.

 11.After January 4, 1939, plaintiff Wattles no longer represented Continental as sales agent or otherwise.

 12. On January 13, 1939, Wattles wrote from New York, on behalf of defendant, the following letter to plaintiff Tate as President of Continental:

 "Ben E. Tate, ...


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