Appeal, No. 189, Oct. T., 1958, from judgment of Municipal Court of Philadelphia, Dec. T., 1954, No. 502, in case of Robert Stewart, Jr. v. North Carolina Mutual Life Insurance Company. Judgment affirmed.
Rufus Scoville Watson, for appellant.
Arnold H. Winicov, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 271]
Plaintiff had been an agent of the defendant insurance company under an oral contract since February 1947. A written contract was entered into by the defendant with the plaintiff effective as of January 5, 1953 which then supplanted the prior oral arrangement. Plaintiff severed his relationship as an agent of the defendant company by resigning in March 1953 to become effective on April 6, 1953. This action was brought by plaintiff under the written contract to recover his commissions on the collection of premiums due on his industrial policy debit for the quarter, January 5, 1953, to April 6, 1953, admittedly amounting to a total of $4,738.71. The suit was for 17% of that amount or $805.58.
The case was tried by Judge Burch without a jury. In support of the averment of his amended complaint, plaintiff testified that he was not paid any commissions on the collections made by him during the period. In its answer the defendant averred that plaintiff had been paid all of the compensation to which he was entitled, in accordance with the formula set forth in Article II of the written contract. And the defendant's testimony was to the same effect. The finding of the trial judge was for the defendant, whereupon the plaintiff moved
[ 187 Pa. Super. Page 272]
for judgment in his favor n.o.v. In disposing of this motion the court en banc took the view that the contract of January 5, 1953 merely reduced to writing the previous oral agreement as to the payment of compensation, although there is no evidence in the present record to this effect. And that court under its construction of the written contract concluded from the testimony before it, that plaintiff had not been paid for the last quarter (i.e., January 5, to April 6, 1953) of his employment with the defendant and accordingly reversed the finding of the trial judge and found for the plaintiff n.o.v. in the sum of $805.58.
The court below thus stated the controlling issue: "... was the plaintiff's compensation as agent deferred from one quarter year to the next, or was compensation paid to him for the current quarter based on commissions earned during the previous quarter year?"
Defendant places its reliance upon Article II Item IV of the frequently ambiguous contract which reads as follows: "Distributable Commissions - based upon my record for a fiscal quarter, shall be paid during the thirteen weeks' period commencing with the fourth week of the succeeding fiscal quarter, the amount of the weekly payment to be 1/13 of the sum of New Business Commissions on Weekly Debit Policies Issued to my Credit ... plus Collection Commissions on Weekly Debit Accounts (described in Item VI below) ..."
If, as it appears from the foregoing language, distributable commissions based upon an agent's record for a fiscal quarter were to be paid during the succeeding fiscal quarter, it follows that in this instance the amount of the payment received by plaintiff during the last quarter he worked, were based on his record of the previous fiscal quarter (at the admitted rate of 17%) at which ...