Swain v. Kleiber Co., Inc.

STURTEVANT, J., pro tem.

Plaintiff, an automobile salesman, sued defendant, a manufacturer of auto trucks, for commissions claimed to be due him under his contract of employment with the defendant. The cause was tried before a jury, and resulted in a verdict for the plaintiff for part of the amount demanded. A motion for a new trial made by the defendant company being denied, it appeals from the judgment, and contends in support of its appeal that the evidence is wholly insufficient to justify the verdict, and that the court erred in several particulars in its instructions to the jury.

The contract of employment was oral, and the parties are not agreed as to its precise terms. According to the defendant the contract was the ordinary one between a salesman on commission and his employer, by which the salesman is entitled to commission only upon orders obtained by him. If the jury had accepted this version of the contract its verdict would have been in favor of the defendant; and we must regard their verdict in plaintiff’s favor as indicating that they accepted his version of the agreement, and held that the parties entered into a much more liberal arrangement than

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the one contended for by the defendant. The latter, we may say in passing, although disputing its liability to the plaintiff for the commissions sued for, appears by the record to have treated him with great liberality, and its present predicament appears to have arisen from entering into a somewhat unusual contract which, resting in parol, was susceptible of almost unconscious variation as to its terms.

The plaintiff testified tó his negotiations and the arrangement entered into between himself and the defendant through its president, Mr. Paul Kleiber, as follows: “I told Mr. Kleiber.that I did not care for a salary . . . but that I did want the five per cent commission that is usually paid for selling trucks, and I had had an experience in Los Angeles in which I had induced a man to mortgage his property to buy a truck, and the last minute the garage man takes hold of it and gets all of the commission, and that I would not enter their employment unless this point was made clear. . . . I told him I had been selling to the large companies down there [Los Angeles], including the oil companies and the lumber companies and other big companies—the gas companies; I knew the procedure of their methods of buying, which are very different from an ordinary corporation. These big companies have a board, some of them five to seven members, that had the handling of this purchasing business . . . that it is a long siege to get these things through these officers; that I wanted to pay off the $4500 mortgage that I had on my property; that I could not get it unless I played for a stake, and that the oil companies would take some time. His answer to me about that was, ‘We are too small to deal with those big oil companies.’ I said, ‘I think I can work it up because I know them personally, the people who have the placing of the order in these companies. ’ ‘Well,’ he said, ‘all right. Go ahead and follow it up.’ And I said, ‘When they send in an order they very rarely hand that order to the salesman, the agent that goes in, but it comes in in various odd ways - outside, ’ and I told him I would not follow it up unless I got my commission no matter how it came in or whether it came in later. Furthermore, it was useless to spend a year or two chasing these people if I was not going to get the repeat orders, take all of that time. , . . He said that if I followed the business up that I should have that five per cent commission no matter how long it took