Korry of California v. Lefkowitz

FOX, J.

This is an action by plaintiff against one of its salesmen to recover “a balance on an open, mutual and current account.” Defendant appeals from an adverse judgment.

Plaintiff, a Los Angeles concern, manufactures and sells men’s ties. In early February, 1952, defendant was hired by plaintiff as a salesman. His territory was Texas and portions of Kansas and Oklahoma. Defendant remained in the employ of plaintiff until August, 1953. Because of the" expense of establishing himself in distant territory and his lack of funds, defendant stated “he would like an advance against his commission.” Such procedure was customary in this business. A weekly advance of $125 was agreed upon. These weekly advances were charged against defendant’s earned commissions. Each month a statement of the invoices credited to the account of the defendant showing the commission due him and the advances paid him, together with the debit or credit balance in favor of the parties, was mailed by plaintiff to him. Defendant admitted receipt of these monthly statements. He made no complaint that they did not truly reflect the state of the account between the parties.

As time went on defendant fell behind in his sales so that his advances always exceeded his commission. Plaintiff thereupon informed defendant that “the balance due Korry was just getting too high.” In discussing the account in April or May, 1953, with a vice president of plaintiff, defendant stated “he would wipe out the debt to” plaintiff.

At the time the defendant’s services were terminated, the balance by which his advances exceeded the commissions earned by him as reflected by the records kept by plaintiff was $3,206.13. The court awarded plaintiff judgment in this amount, notwithstanding defendant’s testimony that he was to have a guaranteed advance.

In his notice to the clerk to prepare the record on appeal, the defendant, in addition to the reporter’s transcript, requested a clerk’s transcript “to include the complaint, answer of the defendant, and judgment of the court, and also to in.

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elude all exhibits admitted in evidence.” As a consequence there are no findings of fact and conclusions of law in the record. Furthermore, the Salesman’s Commission Work Sheets, plaintiff’s Exhibit 1, which reflected the character and state of the account between the parties, is not among the exhibits. It appears to have been released at the conclusion of the trial, pursuant to stipulation, to counsel for plaintiff, who signed for it on that date.