Hollin v. Elam

NOURSE, P. J. Plaintiff and defendants entered into a written agreement whereby defendants employed plaintiff as a salesman in their exporting and importing business between [237]the United States, the Philippine Islands, the Orient, and the Par East, for a period of one year beginning May 1, 1940. Plaintiff was to receive monthly a salary of $100, and was allowed a drawing account of $100 each month. He was also to receive 50 per cent of the net profits from business developed by him. In a suit for an accounting the trial court entered judgment for plaintiff. An account prepared by defendants in the action in the trial court was stipulated as being correct except for certain disputed items. Defendants on this appeal contend that the evidence will not support a verdict for the plaintiff on any of the disputed matters.

As to the compensation to be paid plaintiff the contract provided: “Second Party is to receive a salary of One Hundred ($100.00) Dollars per month and a drawing account in the sum of One Hundred ($100.00) Dollars per month payable semimonthly on the 15th day and the last day of each and every month during the continuation of the within agreement. Second Party is to receive an additional salary from First Party fifty per cent (50%) of all of the net profits, less drawing account payments, . . . the words ‘net profit’ as used herein are hereby defined to include all of the aforesaid gross profits less the following expenses in connection with said business, to wit: cables, long distance phone calls, travelling expenses, and salary; there is to he deducted from any net profits due from said First Party to Second Party all moneys received by said Second Party from said First Party as a drawing account. . . .” (Italics ours.) Defendants in accounting had deducted from the gross profits the monthly salary paid plaintiff. The trial court, on the theory that the contract was ambiguous, and over the objection of defendants, permitted plaintiff to testify to the pre-contracting conversations from which he drew his conclusion that his salary was not to be deducted from gross profits. The admission of this testimony is claimed by defendants to have been erroneous under the parol evidence rule. Plaintiff contends that the testimony did not alter the terms of the contract, but was merely explanatory of certain preliminary conversations and the circumstances under which the contract was made. The objection was entered after the witness had testified, but even if the objection were not made within time, the testimony does not support the contention of plaintiff. The contract is plain and unambiguous. The language left no room for an “explanation.” Plaintiff’s statement that the salary was not to be