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SWEITZER v. WHITEHEAD (07/18/61)

July 18, 1961

SWEITZER
v.
WHITEHEAD, APPELLANT.



Appeal, No. 272, Jan. T., 1961, from judgment of Court of Common Pleas of Berks County, Sept. T., 1956, No. 42, in case of Harry F. Sweitzer et al. v. Donald E. Whitehead et al. Judgment, as modified, affirmed.

COUNSEL

Edward Youngerman, with him Harold Blumberg, Emanuel Weiss, Raymond Schlegel, and Jaffe and Blumberg, for appellants.

Forrest G. Schaeffer, Jr., for appellees.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 404 Pa. Page 507]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

This is an action in assumpsit instituted in the Court of Common Pleas of Berks County by Harry F.

[ 404 Pa. Page 508]

Sweitzer and John Mele (appellees) against Donald E. Whitehead, Edward H. Land and Whitehead Equipment Corporation to recover damages for injuries sustained to certain equipment and the loss of other equipment as the result of a breach of an oral bailment contract. Upon issue joined, the matter was tried before the Honorable Albert S. Readinger and a jury and the jury returned a verdict in favor of appellees in the sum of $23,500 against not only Whitehead Equipment Corporation (Corporation) but also Whitehead and Land. Motions for judgment n.o.v. and a new trial were filed by the respective parties. All motions were discharged by the court below and judgment entered on the verdict. From that judgment, these appeals were taken.

The individuals, Whitehead and Land, maintain that in entering into the oral bailment contract they were acting solely as agents for "Land-Whitehead Equipment Co.", the predecessor of Whitehead Equipment Corporation and the imposition upon them of personal or individual liability was erroneous, hence they are entitled to judgment n.o.v. Their motion for judgment n.o.v. was refused by the court below on the ground that the issue whether they acted as principals or agents for a disclosed principal was, under the instant facts, primarily a question for a jury and that there was sufficient evidence to sustain the jury's finding that when Whitehead and Land entered into the oral bailment contract they acted as and were understood by appellees to be acting as principals rather than agents.

In passing upon this question, we must view the evidence and all reasonable inferences therefrom in the light most favorable to appellees, the verdict winners. On December 16, 1950, Whitehead and Land attended an auction sale in Connecticut which was being held by Sweitzer and Mele (appellees). At the close of the auction certain mechanized sand handling equipment and other allied equipment which had been put for

[ 404 Pa. Page 509]

    sale remained unsold. Whitehead approached Sweitzer, informed him that he was in the foundry business and asked him what he intended to do with the unsold equipment to which Sweitzer replied "that he wanted to sell or dispose of it naturally". Whitehead presented him with a card bearing the name of Land-Whitehead Equipment Co. and indicated that he was interested in disposing of the equipment for appellees on a commission basis. During the discussion, Mele, co-owner with Sweitzer of the equipment, and Land joined the group, the latter being introduced to appellees by Whitehead as his partner. Throughout the ...


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