Baker v. Commeford

WHITE, P. J. Plaintiffs have appealed from the judgment dismissing the instant action, No. 590386. The complaint alleges the existence of a controversy as to the meaning of a written contract whereby plaintiffs employed defendants, and seeks a declaratory judgment that: (a) Defendants’ right to receive a percentage of the gross sales ceased and terminated [600]upon the termination of their employment; and (b) “The term ‘gross sales,’ as used in said written covenant and defined in their prior negotiations, dealings and accountings, means and should be defined to provide that the same applies only to orders theretofore fulfilled and delivered, less the amount of any rejections by the respective purchasers or vendees.”

The complaint also alleges in haeo verba the agreement between the plaintiffs and defendants, whereby plaintiffs employed the four defendants for “plant superintendent,” “engineering and sales,” “engineering and sales,” and “manager and sales,” respectively; and that the employment was terminated by the mutual consent of all parties.

Respondents, by their answer, admit that “an actual controversy has arisen and now exists” between the parties; allege that respondents have filed action No. 590482, setting forth their position and contentions; and attach a copy of their complaint in said action No. 590482.

Respondents’ cross-complaint in the instant action contains two causes of action, which are identical with the two causes of action stated in their complaint in said action No. 590482. The first seeks judgment for 6 per cent of the orders fully completed, delivered and paid for prior to the date upon which the employment of respondents ended; and the second seeks compensation for respondents’ services rendered in securing an additional $596,000 of orders not then delivered or paid for. Appellants’ answer to the complaint in action No. 590482, and their answer to the cross-complaint in the instant action are identical.

At the commencement of the trial, it was stipulated “that there being no order of consolidation in these two eases, the matter may proceed to trial on the cause of Commeford v. Baker, being ease No. 590482, that the evidence taken upon the trial of the issues raised in that case may be deemed and considered by the court as evidence” in the instant action No. 590386.

After two days of trial, motion for nonsuit was granted as to respondents’ second cause of action. The trial of the first cause of action to collect the commissions due them on sales delivered and paid for prior to the termination of their employment continued for about 12 days and resulted in a judgment for respondents for $8,823.33, from which no appeal has been taken, and which has been satisfied.