Metro v. Dickerson

[107]

GRIFFIN, J.

Plaintiff and respondent brought this action against defendants and appellants to recover commissions claimed due upon a written contract which was set up in the complaint.

Plaintiff was an engineer. Defendants owned and operated a business known as The Hub City Structural Steel Company, and were desirous of obtaining the services of plaintiff for the purpose of “estimating, expediting, and to help in the operations of the company. ’ ’ Plaintiff entered upon his duties in August, 1947, under some oral arrangements, On January 29, 1948, there was a signed agreement, prepared by defendants, setting out the wages and commissions to be paid to plaintiff for the period of one year. By its terms plaintiff was to be paid a salary of $400 per month, plus 5 per cent of the net proceeds from the operation of the company, to be “obtained” at the time of the fiscal audit of the company’s books. For this compensation plaintiff agreed to perform the services indicated. Provision was made therein whereby the contract could be canceled on a 30-day notice by either party. If canceled by plaintiff, the net profits were waived by him; if by the company, the net profits, as of that time, were to be determined and plaintiff was to be paid according to the percentage indicated.

The agreement then set out that the defendant company “agrees to pay . . . Mr. Metro the commissions

he has earned on the following

contracts” (italics ours) when the company receives payment for them. Then follows a list of those contracts and the commissions due. Among them was the Haxton contract for the steel construction work in the Palm Springs Gymnasium, fixed at $1,349.39, and the Haddock Engineers’ contract for the erection of an armory, totaling $180. The complaint seeks recovery for these two items. Plaintiff admitted receiving payment on the other contracts listed.

The answer alleges that plaintiff never earned the commissions here in question; and that there were no profits accruing to defendants under the contracts alleged. As a defense, defendants allege that plaintiff so negligently performed the work required of him that defendants were damaged in the sum of $5,000 as a result thereof; that the agreement referred to was canceled on July 9, 1948, and fully discharged by accord and satisfaction, in that plaintiff accepted $200 from defendants in discharge of said contract.