state of the record, the plaintiff is bound by the amount shown in PX27 and DXF.
17. From the invoices, statements, audit sheets and dunning letters of plaintiff, it is impossible to calculate an exact amount for premiums due from Bollinger. After considering this confusing evidence we find as a fact that the amount owed by Bollinger to plaintiff is that shown on plaintiff's last invoice (DXF) to Bollinger dated April 23, 1975, showing a net balance of $15,229.60.
18. Bollinger is liable to plaintiff for unpaid premiums in the amount of $15,229.60.
CONCLUSIONS OF LAW
1. This case does not raise any issue necessitating interpretation of an ambiguity in the policies. Instead, plaintiff seeks payment of earned premiums which defendant not only denies it owes, but contends it has overpaid in excess of $31,000.
Where a court is confronted with such an issue it may look to extrinsic circumstances to determine liability. 8 P.L.E., Contracts, 161, 172 (1971). When the meaning of a contract is doubtful the conduct and acts of the parties in furtherance of the contract is strong evidence of their intentions. Capitol Bus Co. v. Blue Bird Coach Lines, Inc., 478 F.2d 556 (3rd Cir. 1973) and the cases cited therein at n. 3; Eggleston v. Dudley, 257 F.2d 398, 400 (3rd Cir. 1958). The monthly payments made by Bollinger on account of premiums tend to establish at the very least an implied term of the contract requiring Bollinger to make those payments on behalf of its related corporations.
Thus, we conclude that the plaintiff and defendant by a course of conduct entered into an agreement that the defendant Bollinger would pay the premiums generated by its two wholly owned subsidiaries, Vulcan and Portersville, as well as by Kincaid, the owner of a majority of its stock, and Kincaid's wholly owned subsidiary, Superior.
2. Bollinger invokes the Statute of Frauds provision, 33 P.S. § 3, entitled "Promise to answer for debt of another." It is our opinion this statute is not applicable. There is no evidence that Vulcan was a debtor of plaintiff. On the contrary, Bollinger voluntarily advanced payments to plaintiff for insurance premiums for all its closely related companies named in the policies. Those companies were charged by Bollinger with their respective shares in contra accounts; all reimbursed Bollinger for the premiums it paid for them. Even Vulcan satisfied its contra account with Bollinger upon the consummation of the sale of Vulcan to Helton on December 15, 1973. (Findings 10 and 15). Even if the statute of frauds were applicable, it is obvious that a primary consideration for Bollinger's agreement to pay all the premiums was the fact that such payments continued Bollinger's Workmen's Compensation coverage and that of its sister Pennsylvania corporations. This was clearly a beneficial advantage to Bollinger who was required by law to carry Workmen's Compensation insurance. In addition, considerable savings and other advantages accrued to Bollinger and its connected corporations. (Tr. pp. 55-56, 257, 419). Cf. Jefferson-Travis, Inc. v. Giant Eagle Markets, Inc., 393 F.2d 426, 430 (3rd Cir. 1968) discussing the application of the "leading object" rule as an exception to the statute of frauds.
The fact that after Vulcan was sold to Helton in December, 1973, the plaintiff was willing to accept payment of Bollinger's debt, or part of it, from Vulcan, is no indication that a creditor-debtor relationship existed between plaintiff and Vulcan and does not extinguish Bollinger's debt to plaintiff. Restatement, Contracts § 160(3)(4); 12A P.S. § 2-210(1).
3. We are of the opinion that Bollinger's contention that its payment of the Workmen's Compensation premiums of Kincaid and Superior constitutes either corporate waste or a discriminating dividend is without merit. A corporation can no longer use the defense of ultra vires to withdraw itself from an act it has already performed. Downing v. Erie City School Dist., et al., 360 Pa. 29, 39-41, 61 A.2d 133, 138 (1948); Strauss v. W. H. Strauss & Co., 330 Pa. 517, 199 A. 195 (1938); Business Corporation Law, 15 P.S. § 1303 (1967).
4. Plaintiff contends Bollinger is solely liable for the premiums. Liberty Mutual Ins. Co. v. Petroleum Venture Capital Corp., 216 So.2d 925 (La.Ct. of App., 1968). Bollinger contends each named insured is severally liable citing In re John B. Rose Co., 275 F. 409 (2nd Cir. 1921). Both parties agree that the law is minimal with respect to liability of multiple insureds named in insurance contracts. Since we have found that Bollinger is solely liable (Findings 8 and 18), we need not resolve this apparent dilemma and thus make no ruling on the joint and several aspects of the policies in issue.
5. Since all the money Bollinger paid plaintiff was paid voluntarily and without fraud, duress or mistake on the part of the plaintiff, Bollinger cannot recover from plaintiff the premiums already paid. New York Life Ins. Co. v. Levine, 148 F.2d 313, 314 (3rd Cir. 1945); Sebastianelli v. Prudential Ins. Co. of America, 337 Pa. 466, 470, 12 A.2d 113, 115 (1940); Ignatovig v. Prudential Ins. Co. of America, 16 F. Supp. 764 (M.D.Pa.1935).
6. The plaintiff did not agree to exonerate Bollinger from liability for Vulcan's insurance premiums generated from July 2, 1971 to July 2, 1973.
7. We conclude that interest is not recoverable under the evidence. It has long since been established by the Supreme Court of Pennsylvania that interest is not allowed upon an unliquidated account. Williams v. Craig, 1 U.S. 313, 1 Dall. (1 U.S.) 313, 315, 1 L. Ed. 153 (1788); Cf. School Dist. v. Fidelity & Deposit Co., 346 Pa. 491, 31 A.2d 279 (1943); Lackawanna I. & S. Co. v. L. & W. V. R. R., 299 Pa. 503, 149 A. 702 (1930).
The evidence discloses that prior to filing the complaint on April 12, 1974, exact computations of the premiums due are not ascertainable (Finding 17). Even the complaint was amended at trial as to the amount demanded, and the counterclaim demand differs from the amount claimed in the pleading (See footnote 1). Also, the uncertainty of whether Bollinger was entitled to a dividend credit and, if so, the amount thereof, prior to the filing of the complaint is in dispute and adds to the unliquidated nature of the amount due to plaintiff. (Finding 16, PX17).
8. Judgment should be entered in favor of plaintiff and against defendant in the amount of $15,229.60.
9. Judgment should be entered in favor of plaintiff and against defendant on the counterclaim.
An appropriate order will be entered.