Berman v. Rutley

THE COURT.

This is an appeal from a judgment in favor of plaintiff for the sum of $1769.15, alleged to be due according to the terms of a written contract between the parties.

The facts of the case which are relied upon to sustain the findings of the court are these: On the first day of May, 1912, the plaintiff and defendant entered into a written agreement, which recited that the defendant was the holder of a lease

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upon certain premises in the city of Oakland, in which he was to open a clothing store dealing in men’s clothes, and to stock said store with a certain lot of goods which he had theretofore ordered from the Imperial Clothing Specialty Co., a corporation of New York; that the plaintiff was an experienced clothing salesman, whose services the defendant was desirous of procuring as manager of his said store for the ensuing year with a view to a future partnership between them. The agreement further recited that the defendant was presently to receive from the Imperial Clothing Specialty Co. a bonus of five hundred dollars for handling their goods, and that he was also to borrow one thousand five hundred dollars from the plaintiff, which sums he was to use in the fitting up of the store and in the conduct and carrying on of the business; that the one thousand five hundred dollars so to be received from the plaintiff was not to be repaid by the defendant in the event that a copartnership was entered into between them within the period of a year; but that in the event that no such partnership was entered into the plaintiff was to be repaid the same, with interest at the rate of six per cent per annum from the date of its advancement. It was also agreed that the plaintiff was to receive the sum of one hundred and fifty dollars a month salary from the date of the agreement.

The testimony adduced upon the trial was chiefly that of the parties themselves, and was radically in conflict as to what had occurred subsequent to the execution of this agreement. The trial court, however, chose to accept the plaintiff’s statement as to the relation and dealings and differences of the parties during the months immediately succeeding the making of their contract. The testimony on the part of the plaintiff so accepted by the court was in substance to the effect that, owing to some misunderstanding with the Imperial Clothing Specialty Co. and possibly to the unsatisfactory quality of their first consignment of goods, the defendant did not receive from that company its promised bonus, and did not handle their goods, and in fact never did open the store; but, owing to his capricious and procrastinating ways, kept the plaintiff at his beck and call for eleven months, paying him his stipulated salary with a fair degree of regularity during that time, but finally abandoning the enterprise and disposing of the leasehold of the store. During this period repeated attempts were made to arrive at a settlement of the mutual obligations