Republic Foreign Products Co. v. Southwark Foundry & Machine Co.

Citations

• 269 Pa. 522
• 113 A. 74
• 1921 Pa. LEXIS 599

Syllabus

<p>Principal and agent — Agent for sales — Commissions—Impossibility of performance of contract of sale.</p> <p>1. Tbe nonperformance of a contract procured by a selling agent, whether due to events that have made performance impossible, or not, does not ordinarily relieve the promisor from liability to pay to the agent his commissions, though the conditions which arose might be sufficient to terminate liability as between the parties thereto; and this is so as to commissions actually earned, even though the contract becomes impossible by unexpected changes due to war.</p> <p>2. A mere failure to deliver, where payment is to be made at the time of shipment, is not material, where the pleadings show a cancellation of the contract by the parties, without the assent of the agent.</p> <p>Affidavit of defense — Practice, C. P. — Omission of paper relied on — Principal and agent — Commissions.</p> <p>3. Ordinarily an affidavit of defense is to be taken most strongly against him who makes it, for the reason that having the field to himself he must be presumed to have garnered therefrom all that is beneficial to him.</p> <p>4. Where a paper is an important factor in the ease, and defendant attempts to set up his interpretation of it as a defense to the action, or draws therefrom alleged facts as a defense, he must attach a copy to his affidavit of defense.</p> <p>5. Where a contract of sale, procured by a selling agent and known to him, stipulates that the contract iá contingent upon government intervention, and the principal in a suit against it for commissions avers, in its affidavit of defense, that certain priority orders issued by the government constituted an interference with the work, the defense is insufficient, if there is not attached to the affidavit copies of the priority orders in question.</p>