Louis v. Elfelt

Vanclief, C. — This action was brought to recover from the defendants five hundred dollars, alleged to be due the plaintiff as salary for his services as salesman for Elfelt & Co. during the month of December, 1886.

The answer of defendants denies that plaintiff was employed by Elfelt & Co., or by the defendants, for any part of the month of December, 1886, and denies that he rendered any services to Elfelt & Co., or to defendants, during that month.

The plaintiff had judgment for the sum demanded, from which, and from an order denying their motion for a new trial, defendants appeal.

The material facts are, — 1. That cn January 1,1884, and until June 14, 1886, Elfelt & Co., a copartnership composed of A. B. Elfelt, Alfred P. Elfelt, S. Goldsmith, [549]George A. Kohn, and Philip Kohn, were engaged in the wholesale clothing business in San Francisco, generally carrying a stock of merchandise of the value of six hundred thousand to seven hundred thousand dollars; 2. That prior to April, 1884, the plaintiff had been employed by the firm as t 'aveling salesman, at a salary of $350 per month and his expenses; 3. That in April, 1884, he was employed as city salesman, at a salary of six thousand dollars a year, he paying his own expenses, and the increased salary to commence from January 1, 1884. 4. No other express agreement was ever made as to salary, or as to the length of time he should be employed; but he continued in the employment by tacit consent of all parties, and was paid the same salary, until June 14, 1886, when Alfred P. Elfelt died. 5. On the death of Alfred P. Elfelt, the surviving partners continued the business for the mere purpose of winding it up, and plaintiff continued in their employment, without any new express agreement, until some time in,October, 1886, when they notified him that his services would not be required after November following. Plaintiff continued in the service through the month of November, and on December 1st offered and claimed the right to continue until the end of the year; but defendants then discharged him, according to previous notice. After his discharge he reported himself as ready for work from time to time, and was ready and willing to continue his services throughout the month of December; but he was told there was nothing for him to do, and his services were not accepted during any part of that month. 6. On December 1, 1886, the stock of the concern was so much reduced that they could not supply their customers with the assortments ordinarily required, and most of the remnants of stock were sold at auction during that month and January following; and the business was entirely closed out in January, 1887.