We sustain the objection.
One M., chief clerk for Ellis Jackson and Company, and a witness for plaintiff, was asked on direct examination the following question:
*542“Do you know whether Edward Hill’s Son and Company, the defendant, treated the James Bradford Company, the plaintiff in this case, as its agent?”
Counsel for defendant objected, on the ground that the question called for a conclusion of law.
We sustain the .objection.
The shme witness was asked on direct examination the following question:
“Do you know whether Edward Hill’s Son and Company knew that the James Bradford Company was selling soda ash and caustic soda to the Du Pont Company, which was furnished by Edward Hill’s Son and Company?”
Objected to by counsel for defendant, on the ground that it was immaterial whether defendant knew it or not.
Counsel for plaintiff stated that they were trying to show that defendant company knew of the plaintiff company and treated it as its subagent in making the sales to the Du Pont Coitipany.
We sustain the objection.
The same witness was asked on direct examination the following question:
“Do you know whether the defendant knew that the plaintiff was acting in the sale of the chemicals furnished by defendant to the Du Pont Company, in the years 1915 and 1916?”
Objected to by counsel for defendant, on the ground that the question was not limited to the chemicals described on the bill of particulars, that is,, the chemicals sold to the Du Pont Company under the supplementary contract for 1916 and the regular contract for 1917, and for which the plaintiff claimed commissions.
We sustain the objection.
The same witness was asked on direct examination the following question:
“Did you hear a telephone conversation, in 1915 or 1916, between Mr. Ellis Jackson, of Ellis, Jackson and Company, in Philadelphia, and Mr. Taylor of Edward Hill’s Son and Company, in New York, which had reference to the position of the plaintiff in effecting sales of caustic soda and soda ash to the Du Pont Company, and if so, what did you hear of this conversation?”
*543Mr. Satterthwaite: Is the witness going to testify to what Mr. Jackson said or what Mr. Taylor said?
By Judge Heisel: Q. Did you hear what Mr. Taylor said?
A. No, sir.
Mr. Berl: The witness can testify to the end of the conversation he did hear.
We think this is the wrong witness to prove the conversation; the proper witness would be Mr. Jackson.
One T., a member of the firm of Edward Hill’s Son and Company, the defendant, was called as a witness for the plaintiff and was asked in direct examination the following question:
“Did you pay commissions to Ellis Jackson and Company for these sales of the caustic soda and soda ash, described in the bill of particulars in this case, that is, the chemicals sold to the Du Pont Company under the supplementary contract of 1916 and the regular contract for 1917, for which the plaintiff claims commissions?”
Objected to by counsel for defendant as immaterial.
We sustain the objection.
When the plaintiff rested its case, counsel for defendant moved for a non-suit, for the following reasons:
1. There is absolutely no testimony in this case that the plaintiff was acting in any way as the agent for the defendant company; there is no testimony that Ellis Jackson and Company had any authority to employ any other agent or broker who had authority to bind the defendant company; there is absolutely no testimony whether the James Bradford Company had any contract with Edward Hill’s Son and Company which would entitle them to any commission from Edward Hill’s Son and Company on any sales; there is no testimony that if they ever were entitled to any commission, there was any continuing contract, and there was no reason why they should not be cut out as agent or broker at any time; there is no testimony that Edward Hill’s Son and Company ever did pay to the James Bradford Company any commission. The contracts in evidence are absolute sales from Ellis Jackson and Company to the James Bradford Company, and from the Bradford Company to the E. I. Du Pont de Nemours Powder Company, and the testimony is that the Du Pont Company was *544liable to the James Bradford Company for the purchase price of those goods. Second, Mr. Francis testified that on the sales made direct by Edward Hill’s Son and Company to the Du Pont Company, he looked to Ellis Jackson and Company for his commission and compensation, and there is the testimony of Mr. Moran, of Ellis Jackson and Company, that the James Bradford Company was their agent and authorized to sell goods on commission for their account, and the testimony of Mr. Taylor is that he made the sale direct, for Edward Hill’s Son and Company, to the Du Pont Company.
The contention of counsel for plaintiff was as follows:
As to the want of privity or direct right between the plaintiff and defendant in this case, the plaintiff offers the fact that there are two contracts in evidence, one between the James Bradford Company, agent of the Michigan Alkali Company, hereinafter called the seller, and the E. I. Du Pont de Nemours Powder Company, hereinafter called the buyer. Mr. Taylor testified that Edward Hill’s Son and Company, the defendant in this case, is the sole selling agent of the Michigan Alkali Company, so that when a contract is made in the name of the Michigan Alkali Company, by the James Bradford Company, the necessary inference is that it represented Edward Hill’s Son and Company. It further appears from the evidence that under the contract which was shown, and contracts similar to it, deliveries were made by Edward Hill’s Son and Company, to the James Bradford Company who deducted one per cent, commission and forwarded the balance to Ellis Jackson and Company in Philadelphia. There is also testimony that when these sales were in the air, Mr. Taylor, Mr. Jackson and Mr. Francis negotiated with the purchasing agent of the Du PontCompany, together; that on one occasion, when they had failed to make the sale, Mr. Taylor and Mr. Jackson left the place, and Mr. Francis came back and saw the purchasing agent again, and finally succeeded in arriving at a price which carried the sale. The rule of agency depends, not upon any particular contract, but upon dealings between the parties and the facts of the case, taken together. Mr. Francis testified that, at the time the James Brad*545ford Company, representing the Michigan Alkali Company, executed the contract with the Du Pont Company, he executed a similar contract with Ellis Jackson and Company, representing Edward Hill’s Son and Company, and that this contract was in exactly the same terms as the Du Pont contract. The bodies of the two contracts, with one single exception, are identical. That one exception was a provision for one per cent, commission; in other words, the fifth clause of the contract with Ellis Jackson and Company, representing Edward Hill’s Son and Company, provided that the James Bradford Company was to receive a commission of one per cent., and that is entirely inconsistent with the relation of buyer and seller. It is submitted that, in the face of the fact that Edward Hill’s Son and Company continued to deliver under the old relation, and when a time came when they made a contract direct, they tried to shake off their agent, the procuring cause of the sale. This motion should therefore not be granted. Tebo v. Mitchell, 5 Pennewill, 356, 63 Atl. 327; Tebo v. Weld, 5 Boyce, 255, 92 Atl. 876; Geylin v. DeVilleroi, 2 Houst. 311, 316; Hornbeck v. Gilmer, 110 La. 500, 34 South. 651.
We have given this case such consideration as we could, in the short time we have had, and while the court is always reluctant to grant a non-suit, nevertheless, when we feel satisfied there is not sufficient evidence to warrant the jury in finding a verdict in favor of the plaintiff, it is our duty to grant a motion for a non-suit. In this case there is not sufficient evidence to warrant the jury in finding any contract, express or implied, existing between the plaintiff and the defendant, whereby the plaintiff would be entitled to recover a verdict in this case. We are, therefore, constrained to direct that a non-suit be entered.
Mr. Hughes: We decline to accept a non-suit.
Heisel, J. For the reasons just stated, in granting the motion for a non-suit, you are instructed, gentlemen of the jury, to return a verdict for the defendant.
Verdict for defendant.