Lindley v. Sawyer Cabinet Co.
Lindley v. Sawyer Cabinet Co.
060remittitur
Pursuant to stipulation of the parties the judgment is modified to award plaintiff Walter O. Lindley $6,783.07 with interest thereon at the rate of 7 per cent per annum from August 18, 1961, until paid, and costs herein. As so modified it is affirmed; remittitur to issue forthwith. Appellant to recover costs on appeal.
Opinion of the Court
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
Defendant contends there are no findings to support the award of this sum. We must agree that the rambling recital of evidentiary facts called findings scarcely deserves that name. It barely touches upon material issues and in some respects fails altogether.
Instead of finding facts which would entitle Lindley to compensation at the rate of 4½ per cent, the court merely stated in the conclusions of law “The contract signed March 4, 1957, did not effect [sic] sales made prior to said date by plaintiff.” We construe this as an attempt to state that as to orders obtained by Lindley prior to March 4th, and executed by Sawyer thereafter, Lindley rendered services to which the 4½ per cent rate of commissions was applicable. We believe we can hold the finding to be sufficient without putting undue strain upon the rule of liberality in the interpretation of findings. Therefore, the award of $6,783.07 must stand.
The court awarded plaintiff $2,099.11 under a provision of the contract that he would be entitled to payment at the 4½ per cent rate if he was discharged or if he resigned because of any reduction in the commission rate or bonus agreement. The amount allowed was an extra 1 per cent for Lindley’s services after March 4th.
The court found that Lindley was discharged. Defendant says there was no evidence that plaintiff was discharged. Plaintiff replies “The facts of plaintiff’s discharge are brought out fully in forty pages of testimony. [R. T. 62-103.]”
When an appellant says there was no evidence whatever to support a finding and the respondent claims there was evidence, he has a duty to inform the court as to the substance of the evidence, if any, and where it is to be found in the record. We read the forty pages we were invited to read and all the remainder of the testimony. The fact brought out is not that Lindley was discharged, but that he resigned because the company found it necessary to eliminate classes of work he had been bringing in, upon which the company was losing money. It had lost $40,000 the previous
Although Lindley resigned, it was not because of any reduction in the rate of commissions or the bonus agreement. It was because he made a more profitable connection with another company. The finding that he was discharged was without support in the evidence; the allowance of $2,099.11 was in error and the judgment must be reduced in that amount.
The next point relates to an addendum to the contract reading: “Commissions shall be computed at 4% per cent for months when salesman’s earnings are less than $1,000.00” etc. There was no finding that Lindley ever earned less than $1,000 per month. There is a statement in the recital of the evidence, called findings, reading: “. . . the provisions of said contract providing for a commission of 4% per cent during any month in which plaintiff did not earn One Thousand Dollars ($1,000.00) entitled plaintiff to additional compensation of $409.72.”
Lindley did not testify that he ever earned less than $1,000 per month. Plaintiff says in his brief that the trial court was furnished a complete record of Lindley’s earnings and from this record “by application of the formula decided on” the court could compute the additional earnings at $409.72. No set of figures or exhibit was requested for inclusion in the record on appeal.
The court was required to make a finding whether Lindley earned less than $1,000 in any one month. The conclusion of law we have quoted is inadequate. The set of figures which was in evidence, upon which plaintiff relies, may show that
If within ten days of the filing of this opinion a stipulation is filed with the clerk of this court for modification of the judgment, it will be modified in accordance with the stipulation and affirmed as modified, with costs to appellant.
If no stipulation is filed the judgment will be as follows: Insofar as the judgment awards plaintiff $6,783.07 it is affirmed; as to the award of $2,099.11 it is reversed, but not for a new trial or other proceedings; as to the award of $409.72 it is reversed for retrial of that issue alone; appellant to recover costs.
Ford, J., and Files, J., concurred.
On March 18, 1963, the following opinion was rendered:
Case-law data current through December 31, 2025. Source: CourtListener bulk data.