Stark v. Kilgore

MOORE, P. J. Judgment having denied him commissions allegedly earned as a selling agent of respondents, appellant [800]seeks a reversal on the sole ground that the findings do not support the judgment.

In 1941, respondent Kilgore operated a real estate brokerage business in Los Angeles County. In that year by a writing he employed appellant as a salesman. In 1943, such writing was amended by a memorandum which contains the following rules governing the division of commissions:

“1. All salesmen will alternate days on the floor,- except between the hours of 11:30 am to 1 pm. This period will belong to Mrs. Heaton.

“2. It will be the duty of the salesmen on the floor to see that the office is taken care of and wastepaper baskets emptied.

“3. All new prospects (potential customers) which come into the office will belong to the salesman whose day it is, providing he is on the floor.

“4. Salesmen making a sale will receive 60% of commission received by office except in the following cases:—When salesman and office work together on a sale, the commission wiU be 50-50.”

The foregoing provisions remained in full force and effect as the rules for the division of commissions until appellant was discharged on September 26, 1946. Respondent Nichols joined Kilgore as copartner, January 1, 1946, and thereupon because a party to the commission agreement.

Four transactions or sales relate to or are involved in the instant action. The first two had their inception on days when appellant was “on the floor” and were consummated or negotiated by him; transactions three and four were effected by respondents without any assistance on the part of appellant and were initiated on days when appellant was not “on the floor.” The four are as follows: (1) On July 14, 1944, one Marion Zaninovich called at respondents’ office while appellant was on the floor. Property on Santa Monica boulevard was eventually purchased by Marion’s brother-in-law, Peter Jakovieh. In conformity with the agreement appellant received 50 per cent of the commission earned. (2) On a day prior to July 27, 1945, Peter Jakovieh and George Zaninovich entered respondents’ office while appellant was on the floor. Parcels in Tract 8978 were shown them by appellant and were eventually purchased by Jakovieh and George and Marion Zaninovich. Appellant received 50 per cent of the commission earned by that sale. No claim is based upon either of these transactions. In both instances