Appeal, No. 224, Oct. T., 1961, from judgment of Municipal Court of Philadelphia County, June T., 1957, No. 1177, in case of Nixdorff-Krein Mfg. Co. v. Samuel Grossman, individually and trading as Pennco Automotive Co. Judgment affirmed.
Alan William Margolis, with him Paul Kraft, for appellant.
A. D. Gordon, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 196 Pa. Super. Page 106]
The plaintiff manufactures tire chains. The defendant is a warehouseman who also sells chains. Plaintiff warehoused its chains with the defendant under an agreement which, as amended as set forth in a letter from defendant to plaintiff, dated September 23, 1952, provided for a 5% commission on the gross value of goods withdrawn from the warehouse except merchandise transferred to another warehouse under the plaintiff's instructions.
The plaintiff sued the defendant for the price of certain merchandise sold to him. The defendant admitted the plaintiff's claim, but counterclaimed for commissions due on tire chains withdrawn from his warehouse. Some credit for such commissions was apparently given in Exhibit A to the complaint, but the trial judge found an additional amount of commissions due to the defendant. The dispute arises over whether the goods upon which the defendant claims these commissions were transferred to another warehouse, so that plaintiff is not obligated to pay commissions on them.
The goods covered by the counterclaim were delivered between October, 1954 and September, 1955, from defendant's warehouse to Truck Parts and Equipment Co. at plaintiff's order. The trial court found that they were transferred to Truck Parts and Equipment Co. not as a warehouse for storage, but for the purpose of sale and avoidance of payment of the commission due under the contract.
We think the court's conclusion was justified under the testimony for several reasons.
1. Plaintiff's only witness was Mr. Goldstein, the owner of Truck Parts and Equipment Co. He testified that he was in the business of distribution of motor truck parts and that he had never warehoused tire
[ 196 Pa. Super. Page 107]
chains before, although he had warehoused other lines before. He was in the jobbing business. He said that a warehouseman is one who would sell to jobbers who in turn would resell to the trade. He resold ...