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GERFIN v. COLONIAL SMELTING & REFINING COMPANY (05/27/53)

May 27, 1953

GERFIN
v.
COLONIAL SMELTING & REFINING COMPANY, INC., APPELLANT



Appeal, No. 87, Jan. T., 1953, from judgment of Court of Common Pleas of Lancaster County, Oct. T., 1950, No. 70, in case of H. W. Gerfin v. Colonial Smelting & Refining Company, Inc. Judgment reversed.

COUNSEL

John Milton Ranck, with him Herbert S. Levy and Appel, Ranck, Levy and Appel, for appellant.

John W. Beyer, with him Arnold, Bricker & Beyer, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 374 Pa. Page 66]

OPINION BY MR. JUSTICE BELL

Plaintiff brought an action in assumpsit to recover additional commissions of $9,088.44 with interest, which he claimed to be de him, because the oral agreement for commissions made between himself and the defendant

[ 374 Pa. Page 67]

    in July, 1948, and for which he had been paid in full, was obtained by defendant's fraudulent misrepresentation. The jury rendered a verdict for plaintiff's claim with interest; defendant's motion for judgment n.o.v. and for a new trial were dismissed; judgment was entered on the verdict, and from such judgment defendant took this appeal.

Stripped of unessentials, and matters that are here immaterial or irrelevant, the facts may be thus summarized.

Plaintiff, who was a salesman or broker, entered into an oral agreement with defendant in June, 1948 under which he was to receive a commission from the defendant on all aluminum scrap sold by the defendant to the New Holland Metals Co. (hereinafter called "Holland"). The rate of commissions was in dispute. However, six weeks later, viz., in July, 1948, plaintiff averred and testified he agreed to accept a commission of $2.50 per ton instead of $5 a ton as agreed to in June because of defendant's fraudulent misrepresentation that the commission which defendant was receiving from Holland had been reduced from $20 a ton to $10 a ton. This is the crucial issue in the case, and the sole question is whether plaintiff's evidence of fraud was sufficient in quality to take the case to the jury.

We recently said in Wagner v. Somerset County Memoraial Park, 372 Pa. 338, 341, 93 A.2d 440: "It is well settled that fraud must be proved by clear and convincing evidence: New York Life Insurance Company v. Brandwene, 316 Pa. 218, 172 A. 669; Suravitz v. Prudential Insurance Co., 261 Pa. 390, 104 A. 754; Pusic v. Salak, 261 Pa. 512, 104 A. 751; Campdon v. Continental Assurance Co., 305 Pa. 253, 157 A. 464...." Other cases thus expressed the ...


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