Appeal, No. 212, Jan. T., 1959, from judgment of Court of Common Pleas No. 7 of Philadelphia County, March T., 1954, No. 8686, in case of Walter Linn et al. v. Employers Reinsurance Corporation. Judgment affirmed; reargument refused August 17, 1959. Equity. Before ALESSANDRONI, P.J., and a jury. Verdict for plaintiffs, defendant's motion for new trial and judgment n.o.v. dismissed and judgment entered. Defendant appealed.
George E. Beechwood, with him John V. Lovitt, Norman E. Risjord, and Beechwood and Lovitt, for appellant.
C. Russell Phillips, with him George Francis Blewett, and Montgomery, McCracken, Walker & Rhoads, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
This is an appeal from a judgment of the Court of Common Pleas No. 5 of Philadelphia County ordering defendant to account to plaintiffs.
The complaint filed in this case in May, 1954, was for an accounting upon an oral contract. It was alleged that Employers Reinsurance Corporation agreed to pay the plaintiffs*fn1 a commission of 5% on all reinsurance premiums received by defendant from the Selected Risks Insurance Company of New Jersey, an automobile liability insurance company.
By the terms of the contract the work of the plaintiffs was completed upon their aiding in the securing of the business for the defendant. Plaintiffs were not required to collect premiums, service claims or perform any other service. The agreement was made in April, 1926. Thereafter, for twenty-seven years, until March, 1953, defendant paid the plaintiffs 5% upon the business so secured.
This is the second time the case has come before us. It was first tried in 1956, resulting in a non-suit. The non-suit was based on the determination of the then trial court that the New York Statute of Frauds barred this action. On appeal to this Court the decision was reversed.*fn2 On that occasion this Court, speaking through Mr. Justice Cohen, said: "We recognize that
the formal validity of a contract is determined by the law of the state in which the contract was made. Bernstein v. Lipper Mfg. Co., 307 Pa. 36, 43, 160 Atl. 770 (1932); Callaway v. Prettyman, 218 Pa. 293, 67 Atl. 418 (1907). Since the provisions of the Statute of Frauds relate to formal validity, it is to the statute of the place of contracting that we must refer. It is therefore necessary for us to determine in which state the contract was made."
We held that in the case of an agreement consummated by a telephone conversation, as alleged by plaintiffs, the place of contracting is where the acceptance is spoken. In applying this principle to the facts then before us we concluded that there was no evidence in the record to indicate from which state the acceptance was spoken. Accordingly, we reversed and remanded for ...