Lindley v. Sawyer Cabinet Co.

SHINN, P. J. Although denominated an action for declaratory relief and damages for breach of contract this is a simple suit for money and was tried as such. Walter 0. Lindley, the only interested plaintiff, recovered judgment of $9,291.90, consisting of three sums, separately earned, as a salesman for Sawyer Cabinet Company. Defendant appeals.

Walter was in the employ of Sawyer from 1948 to November 1957 as a salesman. Under agreement of February 1950 his commissions were at 3½ per cent. By oral agreement of December 1953 the rate was increased to 4½ per cent. By written agreement of March 4, 1957 the rate of commissions was reduced to 3½ per cent. Prior to March 4th Lindley had taken orders in a substantial amount which were accepted by Sawyer. After March 4th he continued to take orders until November 25th when his services for the company were terminated. For the work performed both before and after March 4th he was paid at the rate of 3½ per cent. Certain orders taken before March 4th were not executed by Sawyer until after that date. The question on this phase of the case was whether Lindley was entitled to receive pay at 3½ per cent or 4½ per cent. The court applied the 4½ per cent rate and awarded Lindley an extra 1 per cent which amounted to $6,783.07. We shall first consider this item.

The contract provided: “Commissions shall be considered as earned and be payable only when the customer has paid his account, or, if the account is paid in installments, then upon the installments as and when paid, and the Employer shall pay, on the fifteenth day of the month, for all commissions so earned and payable as of the end of the previous calendar month. This foregoing provision will not be invoked without written notice to employee and in no case will [625]be retroactive from date of notice.” It also provided: “The Employee shall call upon such customers as may be designated by the Employer or as may be developed by the Employee and shall take all measurements required at the job in which the merchandise is to be installed and shall measure same accurately and guarantee the correctness of such measurements. Should Employee make errors in measurements and or details and additional work is required to correct the job, then Employer reserves the right to charge Employee the cost of a portion or all of any additional work required.” Notwithstanding the provision that commissions were deemed to be earned and payable when the customers paid their accounts Sawyer paid them regularly when the goods were delivered. Defendant’s position is that the statement in the agreement that the commissions would be deemed to be earned and payable when the customers paid their accounts, as modified by practice of paying when the goods were delivered, forces the conclusion that the rate obtaining for work brought in after March 4th was applicable to that produced prior thereto. There was no evidence of any discussion of the rate that would be applied to the orders produced by Lindley prior to March 4th. He was paid monthly as goods were delivered at the 3½ per cent rate and while he objected to the reduction to that rate he did not claim he was entitled to an additional 1 per cent until after he had left the company. It would have been helpful for the court to know whether Lindley did the measuring on the jobs obtained prior to March 4th. The evidence was that when he did the measuring he was paid at the 4½ per cent rate and when the lower rate was paid the measuring was being done by other employees. That was the sole reason for the different rates. There was a dearth of evidence upon this point and the court was required to draw inferences from the terms of the contract and the manner in which it was performed. It was a reasonable inference that Lindley rendered the measuring services on the jobs taken before March 4th, and it was undisputed that when he did the measuring he earned commissions at the 4½ per cent rate. The court found “that many sales negotiated by plaintiff with defendant’s customers were never consummated and no materials were ever delivered pursuant thereto. ’ ’ It was clearly the intention of the parties that Lindley would be paid only for orders that were filled, and it was a reasonable interpretation of the provision that the commissions would be deemed to be earned as deliveries were made was understood by the