Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1967, No. 7776-A, in case of Hydro-Flex, Inc. v. Alter Bolt Company, Inc.
Michael F. Walsh, with him O'Halloran, Stack & Smith, for appellant.
Edwin L. Scherlis, with him Frank and Margolis, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Dissenting Opinion by Packel, J.
[ 223 Pa. Super. Page 229]
This is an appeal from the denial of plaintiff-appellant's petition to re-open a judgment entered against it or grant a new trial after plaintiff filed exceptions to findings of the trial judge. Exceptions were argued before the Court of Common Pleas of Philadelphia, sitting
[ 223 Pa. Super. Page 230]
en banc, and dismissed by that panel. This appeal followed.
Appellant brought suit in 1967 on book accounts for goods sold to appellee. In April of 1968, appellee answered and asserted a counterclaim for commissions on an oral contract in which appellee acted as a "middleman" in preliminary arrangements for a sale by appellant to a third party (DeVal Corp.) of hydraulic hoses and fittings. Appellee's liability on the book accounts was admitted and the only issue in controversy at the trial was the existence of the commissions contract for 7 1/2% of the gross sales to DeVal.*fn1
The trial judge held for appellee on this issue, finding that an oral contract was, in fact, entered into by the parties for stated commission. Appellant's records of account indicated sales to DeVal in excess of $304,000. Commissions thereon amounted to $22,800 and judgment in that amount was entered for appellee. The Court en banc affirmed this finding of the trial judge.
The oral contract was allegedly entered into in February or March of 1966 between Mr. Leonard Schwartz, president of appellant corporation and Albert Heffler, president of appellee corporation. Appellant's general manager, Mr. John Heil, was also present. Heffler was aware of DeVal's needs for supplies on a large government contract and contacted Schwartz and advised him to come to Philadelphia. Schwartz and Heil did so. Prior to introducing them to officers of DeVal Corp., Heffler demanded a commission in return for his services as middleman, in the event that appellant be awarded the DeVal contract.
[ 223 Pa. Super. Page 231]
Heffler and Heil testified that an agreement for a commission of 7 1/2% of gross sales was reached between Heffler and Schwartz before Heffler introduced Schwartz to representatives of DeVal Corp. Schwartz denied that such an agreement had been reached. Mr. Finn, a representative of DeVal, testified ...