Kay v. Laventhal

STURTEVANT, J.

The plaintiff commenced an action to recover commissions. In his complaint he placed his claim against three different defendants. The case was tried before the trial .court sitting without a jury. At the end of the plaintiff’s case the trial court granted separately motions of nonsuit as against each defendant. In accordance with those rulings judgment was rendered in behalf of the defendants. The plaintiff has appealed from the judgment and on this appeal he urges that the ruling granting the nonsuit as to the defendant Isidore Laventhal constituted reversible error.

For some years prior to 1917 Isidore Laventhal had been engaged in transacting a wholesale liquor business in San Francisco under the name of Laventhal Bros. During a part of the time Julian Kay, the plaintiff, was in the employment of Laventhal Bros., but that employment was ter

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minated and later the plaintiff engaged in the cigar business, conducting that business under the name of the Model Cigar Company. In the transaction of the cigar business he had several salesmen and the business was largely confined to making sales in San Francisco. After the plaintiff severed connections with Laventhal Bros, that firm became involved financially and an assignment was made for the benefit of creditors. After that assignment had been made Isidore Laventhal again engaged in the wholesale liquor business, but in what capacity is one of the questions presented by the record in this case. A place of business was opened up at 553 Mission Street. The house was known as Laventhal Mercantile Co. Edward B. Laventhal was generally present and to outward appearances was the bookkeeper. Isidore Laventhal was generally present at the place of business and performing different functions as will herein later appear.

In August, 1917, certain changes had occurred and were about to occur regarding the sale of malt and spirituous liquors. Those changes made it possible to transact a larger amount of business on a smaller capital than theretofore. Appreciating the importance of these facts, the pla.i-nt.iff conceived the idea of inducing his former employer, Isidore Laventhal, to take advantage of the situation and broaden out his business. Accordingly a meeting was arranged and Mr. Kay, Mr. Isidore Laventhal, and one of Mr. Kay’s salesmen, Mr. Schwartz, met in the office of the plaintiff in the Monadnock Building in San Francisco. At that meeting Mr. Kay proposed that he would turn over to Mr. Laventhal the services of his salesmen and that in conjunction with Mr. Laventhal’s organization that an increased effort to make sales of liquor should be made. The plaintiff agreed to finance the business. In return for what he did Mr. Kay required that his salesmen should receive twenty-five per cent of the gross profits on sales made by them; that Mr. Laventhal should receive fifty per cent of the gross profits on sales made by Kay’s salesmen and seventy-five per cent of the gross profits of sales made by himself, and that Mr. Kay personally should receive twenty-five per cent of the gross profits. The proposition as made was acceptable and the enterprise commenced and continued for a period of about six months. The actors worked out of the house at 553 Mission Street. Mr. Kay’s salesmen, Schwartz, La Rock, and