Spindler v. the Wittemann Company

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover commissions alleged to have been earned while acting as a salesman. The defendant answered and a trial was had before the court sitting without a jury. The trial court made findings in favor of, and ordered judgment for, the plaintiff. From that judgment the defendant has appealed.

Before taking up the points made by the appellant it should be noted that this is the second appeal. (See

Spindler

v.

Wittemann Co.,

54 Cal. App. 207 [201 Pac. 604].) An examination of the decision in that ease discloses that the record as made on the first appeal shows that a number of payments were made by the defendant to the plaintiff, but the record did not disclose whether those payments or which ones were made to the plaintiff on the account on which the plaintiff sued in this action.

When the case "went back for the second trial other evidence was introduced and the trial court made findings slightly different from the findings made on the first trial.

The first point made by the appellant is that the plaintiff is bound by the admission in the complaint to the effect that “plaintiff agreed with the defendant to a deduction of $365 from said commission, leaving the net balance thereof in the sum of $827.50.” The appellant thereupon proceeds to show that the respondent has received $800.10 and thereupon the appellant argues that the utmost the respondent should have recovered was $27.40. The vice in that contention arises by reason of the omission to give due consideration to a peculiar fact developed in the evidence. Both parties concede that there was some evidence introduced which tended to support the finding that the commission agreed upon should be estimated at fifteen per cent.

[487]

Both parties agreed that fifteen per cent amounted to the grand total of $1,192.50. There is no conflict in the evidence but what moneys were paid by the defendant totaling $800.10. However, the plaintiff testified that of those moneys $365 was received by the plaintiff, not for himself, but as a gratuity transferred by the plaintiff to one Oppel for having assisted in negotiating the sale. He further testified that the same $365 was, by consent, to be deducted from his commission. It follows that the total commission -which the plaintiff was entitled to charge was $827.50. If we subtract from $800.10, the total payments, $365, there remains $435.10, which was paid by the defendant to the plaintiff on his individual claim for commissions. Deducting .the $435.10, the payments received on his personal account, from $827.50, there remains $392.40, as the amount owing from the defendant to the plaintiff. The findings and the judgment are in direct accord with those figures.