Stein v. Bertram

DORAN, J. This is an appeal by plaintiff in an action to recover a specified sum alleged to be due under the terms of a contract between plaintiff and defendant; and a second cause of action was for money had and received. The trial court found for defendant and from the judgment that followed, plaintiff appeals..

Briefly, it appears from the record that respondent was a merchant engaged in the furniture business. Appellant was a salesman in defendant’s employ. Respondent had determined to liquidate the business, and in connection with said liquidation appellant performed certain services as salesman. A contract was executed between appellant and respondent fixing the terms of appellant’s employment. It was in the form of a letter addressed to appellant which was approved of and signed by appellant. The language thereof in part is as follows: “On or about the 15th day of October, 1942, the undersigned did sell the furniture, furnishings, equipment and principal stock-in-trade in bulk; said sale is, for the purpose of brevity, hereinafter referred to as ‘bulk sale’. Said bulk sale did not include the accounts receivable, certain unfinished furniture, and certain items of equipment. For your services in assisting the undersigned in effectuating said bulk sale, in assisting the undersigned in the collection of said accounts receivable and in selling the furniture, machinery and equipment not included within said bulk sale, and in filling certain orders which were received by the undersigned after said bulk sale, after the undersigned shall first have received the sum of $14,000.00, after first paying the actual liabilities, costs, and expenses paid out to third persons, in order to complete the said subsequent business transacted and the sale of said furniture, merchandise and equipment not included within said bulk sale, and the actual costs and expenses paid out to third persons, of collection of the said accounts receivable, including an allowance to the undersigned of the sum of $75.00 per week, against which there shall be credited any wages, salary or income received by the undersigned from any other source, from all of said property, including the bulk sale, accounts receivable, said merchandise, furniture and equipment not included within the said bulk sale, and from the orders filled thereafter, the undersigned does agree to pay unto you the next $4700.00 collected and received from said assets; and thereafter, to-wit, after the undersigned shall have received the said sum of $14,000.00 and you shall have re[485]ceived the said sum of $4700.00, to pay to you one-half of the net receipts.” (Italics added.) It is the italicized portion of the above which is the basis of the dispute.