MacFadden v. Compson

CRAIG, J.

The plaintiffs and respondents instituted an action in the superior court of Los Angeles County upon an alleged verbal contract, of the defendant and appellant to pay the plaintiff John MacFadden a portion of the proceeds of sale for disposing of certain personal property, and of certain insurance premiums refunded. The transaction appears to have been wholly founded upon services claimed to have been rendered by John MacFadden for the defendant. We shall therefore designate him herein as the respondent.

The complaint alleged that the defendant employed the plaintiff John MacFadden to sell certain moving picture films, and to secure the return of certain unearned insur

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anee premiums thereon, the property of the defendant, for which the latter agreed to pay him one-half of the proceeds of such sale, and of the premiums, which she might receive through such transaction. The defendant denied by answer the existence of any contract in the premises, and affirmatively alleged that although the sale and collection mentioned were consummated, the services were performed by the plaintiffs as employees, for which they were paid wages, in the regular course of employment.

The respondent testified that he was appellant’s cashier and bookkeeper, at a salary of $75 per week, at the time he performed the services for which compensation was claimed; that appellant voluntarily agreed to allow him fifty per cent of any amount for which he might be able to sell certain films, and of the unearned insurance premiums thereon if he could secure their refund; that the defendant departed for New York, leaving instructions that MacFadden be retained in his regular position as bookkeeper and cashier during'her absence; that previously to her return he sold the films and collected the premiums, the proceeds of which aggregated $3,000, which he delivered to Miss Compson upon her arrival; that a few days thereafter he made demand for his share of the moneys, whereupon the defendant informed him that she had purchased a new automobile, had no funds left, and was unable to pay him, but that she later denied any knowledge of having agreed to compensate him for extra services, and refused to pay him therefor. One Grasso, the defendant’s general manager, testified to various conversations between the plaintiff and defendant, and corroborated MacFadden’s testimony as to the sale of the films and collection of the insurance premiums; this witness also admitted having seen the defendant receive two envelopes from the plaintiff, but averred that he did not see the money, although he heard Miss Compson mention that she would “fix it up.” Mrs. MacFadden testified that she heard her husband state to the defendant over the telephone that he would perform the services for fifty per cent of the amount to be realized from the films and insurance.