Appeal from judgment of Court of Common Pleas of Lackawanna County, Sept. T., 1964, No. 1157, in case of Paul Hoffman v. Lomma Enterprises, Inc.
Joseph E. Gallagher, with him Ralph G. Mastrianni, and O'Malley, Morgan, Bour & Gallagher, for appellant.
James E. O'Brien, with him Kennedy, O'Brien & O'Brien, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J.
[ 208 Pa. Super. Page 297]
We are here concerned with an assumpsit action instituted by Paul Hoffman, 15 Bowerhill Road, Pittsburgh, against Lomma Enterprises, Inc., a Pennsylvania corporation with offices at 305 Cherry Street, Scranton, wherein the plaintiff sought to recover a commission of $4,500.00 on the sale by the defendant to Joseph A. Castellucci and wife of a miniature golf course installation. The case was tried before Judge Conaboy
[ 208 Pa. Super. Page 298]
and a jury. Following a verdict for the plaintiff, the defendant filed a motion for a new trial. This motion was subsequently dismissed by the lower court, and judgment was entered on the verdict. The defendant has appealed. The factual situation is summarized in the following excerpt from the opinion below:
"The testimony in this case revealed that the defendant, Lomma Enterprises, Inc., was engaged in the manufacture of miniature golf courses and related equipment. On June 11, 1963, the plaintiff was appointed, by the defendant, as a free-lance salesman covering the Pittsburgh area. At the time of his appointment, it was agreed that the plaintiff would be paid a commission on any sale which he made; that the commission would vary depending upon the price of the product which he sold, and, in any event, the commission would amount to 12% where the sale price was $9,900.00 or more.
"Some time in October of 1963, the plaintiff was directed by the defendant to, and did, contact a prospect by the name of Castellucci and conducted certain negotiations with the said Castellucci for the installation of various types of golf equipment.
"On January 21, 1964, while he was still in contact with the said Castellucci, plaintiff was notified by letter, from the defendant, to cease his contact with Castellucci, but at the same time was assured by the defendant that he 'would be protected commission-wise' in the event of a subsequent sale to the prospect, Castellucci.
"Thereafter, the defendant and Castellucci did in fact enter into an agreement [May 22, 1964] under which the defendant installed for the said Castellucci a driving range, a miniature golf course and other equipment at a price which the defendant informed the plaintiff was $37,500.00 . . . Subsequently, the plaintiff sought his ...