Walsh v. Jack Rubin & Sons, Inc.

SCHOTTKY, J. From January, 1954, to March, 1957, Ambrose Walsh was employed by Jack Rubin and Sons, Inc. (hereafter referred to as Rubin) in the operation of a sales and service business of wire rope and other logger’s supplies. These supplies were furnished by Rubin from its Los Angeles office. By the terms of the contract of employment Walsh was to receive commissions of 7% per cent based on the gross profits of the business as his compensation. Gross profits were defined by the parties as “the gross receipts derived from the operation of the venture less all operating costs, which operating costs shall be deemed to include, but not be limited to, all wages and salaries including the fixed salary of Walsh, all overhead costs, including rent, utilities, and insurance, the depreciation of capital assets to be used in the operation of the venture, including trucks, automobiles and fixtures in accordance with Rubin’s regular accounting practices and expense attributable to the preparation and delivery of merchandise, either to the warehouse of the venture, or directly to the purchaser as the case may be. ’ ’

During the period of the relationship Walsh received commissions and drew advances against commissions. From time to time Rubin rendered statements to Walsh and according to Walsh these were questioned by him as to their accuracy. Walsh was discharged in March, 1957, and thereafter filed an action against Rubin, the first count alleging that an accounting would disclose an unstated balance of commissions [654]due Walsh; and the second count alleging that by reason of Rubin’s breach of the agreement Walsh had been damaged in the sum of $20,000. Rubin filed an answer denying that any sum was due Walsh and also filed a cross-complaint for sums alleged to be due from Walsh because of sums advanced by Rubin to him in excess of commissions earned.

At the trial the written contract, six purported commission statements given to Walsh by Rubin, and the ledger of Rubin containing the record of sales, expenses and all the accounts pertaining to the venture involved in the instant action were introduced in evidence. The president of Rubin, called by plaintiff Walsh and examined under section 2055 of the Code of Civil Procedure, testified that the books of account were prepared by an accountant and that he believed them to be correct, although he was not familiar with all of the entries the books contained.

The trial court concluded that it was unnecessary to order an accounting, and from the evidence and records introduced determined that Walsh was entitled to the sum of $3,960.42 as commissions due him, less the sum of $391.74 which was funds received and retained by him with the knowledge and permission of Rubin. Judgment was entered in favor of Walsh for $3,568.68, and Rubin has appealed from the judgment.