Rice v. Brown

SCOTT (Robert H.), J. pro tem. Plaintiff appeals from an adverse judgment in an action for money brought by him against his employer. A judgment favorable to plaintiff fol[579]lowing an earlier trial of the same case before another judge was reversed on appeal (104 Cal.App.2d 100 [231 P.2d 65]). This resulted in the second trial concerning the outcome of which plaintiff now expresses his dissatisfaction.

The complaint named two defendants, Jack A. Brown and his son, William A. Brown. The latter was a nominal defendant and from the adverse judgment as to him plaintiff has taken no appeal. We shall refer to defendant (respondent) Jack A. Brown merely as defendant.

It was stipulated at the trial that the relationship of plaintiff and defendant was that of employee-employer. Defendant was a plastering contractor. He employed plaintiff, an experienced estimator, to make estimates on prospective plastering jobs and to assist in procuring contracts. Payment for such services was to be a percentage of the profits.

Upon the trial of the case plaintiff established a prima facie right to an accounting. Thereupon the trial proceeded on the issue of defendant’s affirmative defense that there had been a new oral agreement which was referred to as an account stated between the parties.

Under the original agreement of the parties plaintiff’s compensation was to be calculated as follows: From the profit on a job defendant was to deduct and retain 2 per cent of the gross cost, plus $100 per week, plus 50 per cent of the balance; plaintiff was to receive the other 50 per cent of the balance. Plaintiff’s share was later reduced to 33% per cent of the balance, at a time when he agreed that defendant could put his son, William A. .Brown, to work and that the balance of the profits would be divided equally among the three of them.

On July 1, 1946, defendant notified plaintiff and William A. Brown that their employment would end August 1, 1946. At the trial he testified that about the time that he so notified them, “I told them that I would finish the contracts, all that we had on the books, and they would participate in their share of the ones that were under construction, that is, the plastering was started, but on the ones that had not been started they would not participate.” To this statement he testified that plaintiff replied, “All right.” He also testified that at a conference on July 31st, substantially the same conversation took place, to the effect that plaintiff would not be paid for jobs on which work had not then been commenced.