Margolis v. Leonard & Holt

DOOLING, J.,

pro tem.

Plaintiff, who had been employed by defendant as a real estate salesman, brought this action to secure an accounting from defendant of the amount which had become due to him for sales of real estate made by him while he was in defendant’s employ. The action was commenced on July 15, 1925, but by stipulation of the parties entered into during the trial the accounting was had to October 1st of that year.

Under plaintiff’s contract with defendant his commissions did not accrue until the money from the sale of the properties was actually collected by defendant and the accounting was asked for because the record of those collections was in the possession of defendant and not available to the plaintiff. At the conclusion of the trial, in which evidence, much of it conflicting, was introduced covering a large number of transactions, the court ordered judgment for plaintiff for $3,000. From the judgment which followed plaintiff has presented this appeal.

The trial court made a general finding that “from the period of March 18, 1924, to October 1, 1925, the defendant received commissions from various sales negotiated and consummated by the plaintiff, and that the portion or share of said plaintiff in said commissions during said period amounted to the sum of Three Thousand Eight Hundred ($3800) Dollars, and that no part of said sum of Three

[718]

Thousand Bight Hundred ($3800) Dollars had been paid to plaintiff, except the sum of Eight Hundred $800 Dollars.”

Appellant attacks this finding on the ground that it merely determines the balance due to the plaintiff and respondent as of October 1, 1925, and does not set out any of the items of the accounting. Appellant complains of this upon

two

grounds: 1. That the finding is not sufficiently definite to permit appellant to specify intelligibly the particulars in which it is not supported by the evidence, and 2. That appellant was entitled to a specific finding of the court as to every disputed item determining whether or not the money involved in that particular transaction had been collected by appellant prior to October 1, 1925', so that in any subsequent action between the parties respondent would, as to those items found to have been collected prior to October 1, 1925, be precluded from further claim.