Rittenhouse v. Exeter MacHine Works, Inc.

Pee Cueiam, Henry L. Rittenhouse, trading as the Read-Rittenhouse Company, sued the Exeter Machine Works, Inc., to recover certain commissions alleged to be due him from the latter, for acting as sales agent, pursuant to an *306 agreement made between them. At trial, plaintiff testified, on cross-examination, that his business was that of manufacturers’ representative in the sale of steel and allied products; and that, in addition to acting as defendant’s sales agent, he transacted business of the same general character for other concerns, — indicating, as defendant contends, that plaintiff was conducting the business of a broker. Counsel for defendant thereupon sought to cross-examine plaintiff as to his payment of a broker’s license, required by the Act of May 7, 1907, P. L. 175. Plaintiff objected that there was no averment in the affidavit of defense as to his being a broker or that he had failed to comply with the statutory requirements in question. The objection was sustained, under exception, and the cross-examination was not permitted. The jury found for plaintiff. Defendant moved for a new trial, the principal reason in support of this motion being that, since plaintiff had sworn by his own testimony that he was engaged as a broker during the period covering his dealings with defendant, the trial judge erred in refusing to permit the latter’s counsel to cross-examine plaintiff as to whether he had a broker’s license and had paid the state tax on his business. The court in banc granted a new. trial, that the “question whether the plaintiff was actually engaged in the business of a merchandise broker at the time......he rendered the services for which he brought suit,” might be properly developed, and, if necessary, submitted to a jury. The present appeal is from the order granting the new trial.

The view of the court below that, under the circumstances as they existed at the last trial, the cross-examination was permissible, is sustained in principle by Sloan v. Miller, 275 Pa. 452 (see also Cherry v. Peoples Trust Company, 282 Pa. 52, 54, 55 ); therefore, even if the grant of a new trial was based solely on that theory, we cannot say it was wrong. On appeals such as the one now before us, this court never reverses unless the record *307 demonstrates that the order complained of was caused alone by a clear error of law or was based on a palpable abuse of discretion; neither of which appears in the present case: Weiss v. London Guar. & Accident Co., Ltd., 282 Pa. 127 ; see also Simmons-Boardman Pub. Co. v. American Boron Products Co., 282 Pa. 521 .

The order appealed from is affirmed.