Hanson v. E. M. Hundley Hardware Co.

DRAPER, P. J. Plaintiff employee, seeking commissions allegedly earned by him, had judgment for $4,314.99. Defendant employer appeals.

Defendant, a hardware dealer, employed eight estimator-salesmen, including plaintiff. Each was to secure plans for building construction, perpare lists of the hardware required, and submit defendant’s bid therefor. If the bid were accepted, the estimator-salesman was to supervise timely delivery to the job, and to resolve disputes with the builder-buyer. Until June 1, 1956, each such employee was paid a [411]salary. The eight desired to change to a commission basis. In May 1956, defendant employer issued a letter to them proposing such compensation, and the new terms became effective June 1,1956.

So far as here relevant, the letter provided that each estimator-salesman should receive commission upon jobs handled by him, should be charged with rent and telephone calls, and specified “No commission paid until store has been paid in full.”

Plaintiff resigned July 31, 1957. He claims that the employer’s accounting fails to credit him with commissions upon several jobs fully performed by him and, separately, that he is entitled to recovery in quantum meruit on three jobs either not paid for in full or not fully performed by him.

As to the accounting feature, the court failed to charge plaintiff with rent and telephone, although the agreement specifically provides for such deductions. Although this appears to be mere oversight, there are other claimed charges against plaintiff, also omitted, which may have been disallowed by the court. In the absence of specific findings, we cannot say that the error is one of arithmetic only, and must remand the ease. Several errors of computation are pointed out in the briefs. We need not enlarge this opinion by discussing them in detail, as they doubtless will be corrected by the trial court.

The principal legal issue involves the Mein job. All hardware for that job had been delivered, and some $9,000 had been charged by defendant to Mein therefor, before plaintiff quit work. Admittedly, a commission of $1,955.20, as allowed by the court, would be due to plaintiff if payment for this hardware had been made. However, some $3,000 of this total was written off by defendant after plaintiff left his employ. Defendant argues that no commission is due under the contract because he has never been paid in full for this job. The trial court found, on conflicting evidence, that defendant “voluntarily chose not to collect” this sum, “in order to get additional business from the particular customer.” Defendant cannot rely upon his own prevention of performance to escape liability. Rather, plaintiff is entitled to recover in quantum meruit, as he has here, and to look to the written contract as evidence of the value of his services (Reynolds v. Jourdon, 6 Cal. 108, 111).