Foster v. Peters

[205]

SHAW, J.

pro

tem.

This appeal by defendant is pre sented on the judgment roll alone, with no record of the evidence. From the findings, the following facts appear: Plaintiff is an insurance solicitor, and defendant an insurance broker, and plaintiff was employed by defendant for a time to work as solicitor for defendant. Prior to his employment by defendant, plaintiff had acquired a selective and confidential list of customers for the sale of casualty, fire and accident insurance, with whose insurance needs he was familiar, and with whom he had a valuable good will. Defendant employed plaintiff to solicit and sell “to various persons life and related policies of insurance and while so employed to solicit and sell casualty, fire and accident insurance to plaintiff’s said selective list of clientele and customers.” While plaintiff was so employed, defendant kept records of the policies sold by plaintiff to these customers and the commissions earned by plaintiff thereon, and became acquainted with their names, addresses and insurance needs. Since plaintiff left defendant’s employ, defendant has used plaintiff’s list of customers and solicited and attempted to sell insurance to them without plaintiff’s permission.

In his complaint plaintiff asked an injunction against such use of his list and also for an accounting and judgment for the amount of commissions due him on policies sold by him to his customers while in defendant’s employ. The trial court gave plaintiff judgment for an injunction and for the sum of $1,032.94, from which judgment defendant appeals.

Defendant argues that the findings are inconsistent and hence do not support the judgment. The claimed inconsistency relates only to the nature of the agreement between plaintiff and defendant as to the compensation to be paid by defendant to plaintiff.

Plaintiff’s complaint did not allege what this agreement was, except to show that commissions were to be earned by plaintiff on sales of insurance policies to his customers. In his answer defendant alleged the agreement in this respect to be that plaintiff was to have 50% of these commissions and defendant was to retain the other 50% for his services in handling the business. The court found that this part of the answer was not true. In connection with a cross-complaint which alleged that the same agreement was made for