Baxter v. Krieger

KINCAID, J. pro tem.

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This is an appeal from a judg ment in favor of defendants, hereinafter referred to as Sunbeam, and against plaintiff-appellant based upon a fourth

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amended complaint for claimed commissions due and for an accounting. Under the findings and judgment no commissions or any moneys were found due by Sunbeam to plaintiff and an accounting was denied.

Sunbeam, a manufacturer of fluorescent lighting fixtures, employed plaintiff in February, 1947, as its manufacturer’s representative in two areas, the San Francisco territory, and the Northwest territory. Plaintiff’s representation was terminated April 15, 1953, as to the San Francisco territory and in July, 1953, as to all other areas.

It is plaintiff’s contention that, by oral agreement at the time of his employment, he was to receive sales commissions of 5 per cent on all sales made in his territory whether by him or not. Sunbeam contends that the terms of the commission agreement were varied by mutual consent from time to time during the term of employment depending upon the type and sales price of merchandise. The agreed percentages, though generally 5 per cent, varied from 2, 2%, 3, 3%, and 4 per cent. Commission statements were furnished monthly to plaintiff accompanied by check, some 84 regular monthly commission statements with cheek having been delivered to plaintiff over a period of some six and one-half years. Plaintiff protested cuts in his commission from time to time but received explanation therefor, the amount of such commission being determined by the nature of the merchandise sold, the suggested distributor’s price, the necessity of meeting competitive conditions as well as the amount of profit involved in the particular sale. Likewise, after shipment of orders, plaintiff received notices of the amount of commission earned on the particular order by receiving a copy of the order with the commission shown thereon.

Plaintiff contends he was entitled to an accounting of moneys due by reason of orders procured prior to tp.-rmi-na.timi of his employment. He seeks this accounting covering the entire period of his employment by Sunbeam. He claims he is entitled to (1) the difference between the commissions received by him monthly and a sum representing 5 per cent of all sales procured and filled from plaintiff’s territories, and (2) commissions on all orders procured from such territories prior to termination of his employment even though they may have been filled after his leaving.