Hager v. Goddard

SCHOTTKY, J. pro tem. Plaintiff and appellant commenced an action against defendant and respondent, alleging that plaintiff performed services as the manager of defendant’s shoe store at Susanville, that defendant agreed to pay plaintiff a weekly salary, one-third of all net profits, and “a further commission on gross sales, where goods were sold on a mark-up of over forty per cent,” and that the balance unpaid from defendant to plaintiff is the sum of $1,498.97. Following the filing of defendant’s answer denying the allegations of the complaint, the cause was tried by the court, sitting without a jury, and the court made the following findings of fact:

“First: That during the year 1943, plaintiff A. A. Hager worked for defendant J. W. Goddard, as manager óf a shoe store in Susanville, California, for a period of six months.

“Second: That plaintiff was to receive for his services $40.00 per week, plus one-third of the profits of said store.

“Third: That plaintiff has received from the defendant the sum of $40.00 per week for his services, plus one-third of the profits of said store, and has been paid in full, under the terms of said contract.

“Fourth: That each and all of the allegations set forth in plaintiff’s complaint herein not consistent with the findings herein set forth, are untrue.”

Judgment was entered in favor of defendant in accordance with said findings, and this appeal is from said judgment.

The principal, and in fact, the only contention of appellant is that the judgment is contrary to the evidence. We shall, therefore, give a brief summary of the evidence.

Respondent owned a shoe store at Susanville, California, and also one at Grant’s Pass, Oregon, where he resided. He evidently desired to have appellant manage the Susanville store, and on March 5, 1943, appellant telegraphed respondent as follows: ‘ ‘ Offer acceptable, would like written agreement of Forty weekly draw plus third profits for time employed as we discussed. . . . Answer Western Union collect if accepted.” To which respondent replied on March 6, 1943: “Wire received. Written agreement OK. Salary OK. Look for you Thursday. ’ ’ Appellant thereupon went to Susanville and took charge of respondent’s shoe store and continued in [382]said employment until about the middle of September, 1943, a period of approximately six months. He drew the sum of $40 per week. Upon the termination of appellant’s employment there was some discussion between appellant and respondent as to what was due appellant. Appellant introduced into evidence what he and his counsel referred to as a “tentative” or “estimated” settlement which was in respondent’s handwriting and read as follows: