OPINION BY MR. JUSTICE BELL, March 28, 1951:
Plaintiff, a contract carrier by motor vehicle, brought an action of assumpsit against defendant for the cost of operation plus a reasonable profit guaranteed him under a written contract dated August 30, 1937, and recovered a verdict of $16,050.13. Defendant appealed from (the judgment on the verdict which was entered following) the lower court's refusal to enter a judgment n.o.v. or to grant a new trial. What is the proper construction of the contract; was the contract legal; was plaintiff's evidence sufficient to establish his case? — These are the most important questions involved in this appeal. From 1200 pages of testimony we shall briefly summarize the important facts.
Plaintiff was employed by defendant as a truck driver commencing in 1933. In 1936 defendant persuaded plaintiff and other truck drivers of defendant to purchase their own trucks and become contract carriers, orally promising plaintiff (and others) that if they did so they would be given steady work and would make a profit and that their earnings would be considerably increased over those they received as ordinary truck drivers. On August 30, 1937, plaintiff and defendant entered into the aforesaid written contract which was prepared by counsel for defendant and was subsequently filed by counsel for defendant with the Public Utility Commission of Pennsylvania. A similar contract was prepared by defendant and executed by it and 31 other truck drivers of defendant at approximately the same time. The contract was for a period of one year, renewable automatically for a further term of one year and so on from year to year unless 15 days'
It will be instantly noted that the compensation was not fixed but, because of the indefinite and uncertain services to be rendered by the carrier, the compensation was to vary with a number of varying factors and a cost-plus profit was guaranteed. The importance of this cost-plus clause in the construction of the contract and the question of compensation will hereinafter more fully appear.
The court below, in a detailed, comprehensive and very able opinion, held — and we agree — that under said contract of 1937 plaintiff was entitled to "the full cost of operation . . . plus a reasonable profit."
The conduct of both plaintiff and defendant clearly indicates that the parties believed and intended the contract of 1937 to be binding. Not only did the plaintiff so testify, but (a) in 1943 defendant brought an action against plaintiff upon the aforesaid contract of 1937 in which it averred that said contract was still in full force and effect; and (b) on February 1, 1944, defendant and plaintiff entered into a supplemental written agreement amending (in immaterial matters) "the present contract entered into between the parties hereto dated the 30th day of August 1937" and reaffirming and ratifying said contract of August 30, 1937. How then is it possible for defendant to now maintain that the parties intended to abrogate the contract of 1937 and supersede it by the rates filed with the Pennsylvania Public Utility Commission?
Defendant nevertheless contends that the minimum, maximum and only compensation legally payable to plaintiff is that which is in accord with the schedule of rates or charges filed with the Pennsylvania Public
This case was further complicated by the fact that plaintiff claimed for the cost of operation plus reasonable profit for merchandise transported by him outside of Pennsylvania under the guarantee clause of the aforesaid contract of 1937. Defendant prepared and filed with the Interstate Commerce Commission an application for a license for plaintiff, together with an accompanying contract made between defendant and plaintiff dated December 4, 1939. Defendant in this contract guaranteed plaintiff 500,000 pounds of merchandise for transportation during the year. The contract also provided that the compensation for the transportation of such merchandise should be 2¢ per ton mile and further provided that "Nothing in this agreement shall prevent the Company from paying the Carrier reasonable additional compensation based upon and varying with the type of service, the flow of tonnage and territory involved and served."
There was sufficient evidence on the question of modification to take the case to the jury. In the first place, the plaintiff and his witnesses testified that it was the intention of the parties, and that they had agreed, that contract carriers would be compensated for both intra-state and inter-state transportation as provided by the 1937 agreement; in the second place the acts and conduct of the defendant corroborated this understanding. For example, the defendant never paid the plaintiff 2¢ per ton mile as fixed by the said contract of 1939. On the contrary, the uncontradicted evidence showed that all transportation outside of Pennsylvania was paid for by defendant under the zone rate schedules filed with the Public Utility Commission
Defendant makes the same legal contention with respect to the rates filed with the Interstate Commerce Commission that it made with respect to those filed with the Pennsylvania Public Utility Commission, namely, that they were the only charges or rates which could legally be collected. Regardless of any technical violation by plaintiff of the Interstate Commerce Act the present suit of the plaintiff does not violate the public policy expressed by said Act since plaintiff is
The Interstate Commerce Commission is concerned with minimum rates for contract carriers. Throughout the Interstate Commerce Act
Bottemueller v. Wilson & Co., 57 Fed. Supp. 766 and Gardner v. Rich Manufacturing Company, 158 Pac. 2d. 23, cited by defendant, are clearly distinguishable. Each of them involved a situation where the contract carrier accepted payments below the minimum rates fixed in the schedule filed with the Interstate Commerce Commission. The following excerpt from the opinion in the Bottemueller case is illuminating (p.
That brings us to the next question: was the evidence to prove plaintiff's case sufficient? Plaintiff claims that he is entitled under the contract of 1937 to a "compensation at least equal to the full cost of operation of the typical or average operator of the same class as carrier for similar service plus a reasonable profit." We have already decided that this is the correct construction of said contract. However, the parties vigorously disagree as to what is meant by the "full cost of operation"; what is a "typical or average operator"; "of the same class as carrier"; and what is meant by the words "similar service"; and "a reasonable profit."
It becomes necessary, therefore, to determine what is meant by this controversial clause and whether plaintiff's evidence was adequate. We must remember that plaintiff was a truck driver without a lawyer, and the contract was prepared by defendant's able, experienced lawyer. If, therefore, the contract, or any part of it, is susceptible of two reasonable constructions, "It is an elementary proposition that a written contract should, in case of doubt, be interpreted against the party who has drawn it; 6 R.C.L. page 854, Sec. 242; White vs. Smith, 33 Pa. 186." Hempfield Township School District vs. Cavalier, 309 Pa. 460, 463, 164 A. 602.
"`The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if it can be done consistently with legal principles.' [citing cases] `Contracts
"`. . . . in order to ascertain that intention, the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement': Slonaker v. P.G. Publishing Co., 338 Pa. 292, 296, 13 A. 2d. 48, 50, 51." Hindman v. Farren, 353 Pa. 33, 35, 44 A. 2d. 241.
How do these principles apply to the facts which were proved in this case? The jury could have found from the evidence, and the contract itself discloses, that the conditions sought to be covered by the contract were so unusual, indefinite, varying, uncertain and unforeseeable; the subject matters involved such as the different kinds, nature and weight of commodities and merchandise; the services to be performed at call; the unknown destinations and uncertain times of performance; and all the surrounding facts and circumstances necessarily made it impracticable and probably impossible to clearly and with particularity specify in the agreement any detailed method of ascertaining the compensation. The contract itself in effect said that the compensation could not be fixed in advance because of so many uncertain and unknown factors.
Plaintiff offered evidence to prove the actual cost of operations on a yearly basis of half a dozen contract carriers, who, according to the evidence were typical or average and in the same class and rendered similar service as plaintiff, in that they all hauled about the same load irrespective of the size or weight of their trucks, and they all did approximately the same transportation work; and then the plaintiff struck an average
Defendant does not allege what particular yardstick should be adopted but says that the clause in question means, if it means anything, "the full operating cost for a reasonable unit of service rendered, such as a ton mile or a zone ton or some other reasonable unit." In other words, defendant admits the clause is capable of any one of several constructions; but not the construction placed upon it by plaintiff. Defendant's theories and arguments as to a reasonable interpretation of each element in this clause are, when applied to the facts and attendant circumstances, specious but impractical, unreasonable and unsound. The court below found that the record was replete with testimony showing the impracticability, if not impossibility, of figuring out costs on any ton mile or zone ton or other unit basis. No one could reasonably expect a truck driver to keep books on any such basis. If a cost accountant had been employed by a truck driver to compute costs per ton mile or per zone ton, he would have had to qualify every figure he arrived at by explaining that this figure was a cost per ton mile for hauling certain commodities in certain loads over certain routes with the figures changing and varying with different commodities, loads, roads and weather conditions. That would be ridiculous. On the other hand, taking as plaintiff did, the total costs of half a dozen typical carriers on a yearly or other basis and then averaging the cost would give a reasonable, practical and substantially accurate measure of the full cost of operation within the meaning and intent of paragraph 9 of the agreement of 1937.
Defendant next contended that a typical or average operator was one whose truck weight was for licensing purposes the same as plaintiff's. This theory is refuted
Defendant also contended that the court below erred in holding (1) that the testimony of plaintiff and his witnesses as to the estimated time devoted to serving the defendant under their contracts was admissible; and (2) that plaintiff was entitled to compensation for himself in computing his cost; and (3) that the Union wage scale was applicable and therefore admissible as an element of cost in computing plaintiff's own allowable salary or cost; and (4) that the testimony of plaintiff's certified public accountant was admissible; and (5) that plaintiff's evidence was sufficient to make out a prima facie case for the jury.
Defendant attacked most vigorously the admissibility of the testimony of plaintiff's certified public accountant
The rule with respect to a claim for compensation for services rendered and accepted is well stated in Lach v. Fleth, 361 Pa. 340, 352, 64 A.2d 821: "The law does not require that proof in support of claims for damages or in support of claims for compensation must conform to the standard of mathematical exactness. In Western Show Co., Inc. v. Mix, 308 Pa. 215, 162 A. 667, we held that evidence in support of a claim for damages was sufficient `if it afforded a reasonably fair basis' for calculating the plaintiff's loss. The same rule applies when the claim is for compensation for services rendered and accepted. If the facts afford a reasonably fair basis for calculating how much plaintiff is entitled to such evidence cannot be regarded as legally insufficient to support a claim for compensation." See also to the same effect, Weinglass v. Gibson, 304 Pa. 203, 155 A. 439; and Osterling v. Frick, 284 Pa. 397, 131 A. 250.
We find no merit in these or in any other contentions made by defendant, all of which we have considered but deem it unnecessary to discuss. We believe that plaintiff's construction of the contract was reasonable; that the contract was legal; that considering