WEINBERG v. BELOND (1947)

Plaintiff Weinberg sued Los Angeles Knitwear Co., a corporation, and others, to recover commissions for sales of merchandise manufactured and jobbed by defendants; he recovered judgment for $3,084.70 against appellants D. J. Belond, Los Angeles Knitwear Co., a corporation, and Morris P. Kaplar. The sole contention on the appeal is that there was an insufficiency of evidence to justify the material findings.

Plaintiff was employed by Belond and Kaplar while they were doing business as Los Angeles Knitwear Company; the corporation of the same name later took over the business and assumed its obligations. The court found that plaintiff sold for and on behalf of Belond and Kaplar $224,515 worth of merchandise; that defendants delivered $123,678.55 net of merchandise to customers solicited and sold by plaintiff, for which defendants agreed to pay plaintiff $7,420.71; that $4,336.01 had been paid, leaving a balance of $3,084.70, for which judgment was given. Plaintiff's earnings were computed upon the basis of six percent of the value of merchandise delivered and the amount for which judgment was given represents the difference between six percent and three and one-half percent of sales and deliveries of merchandise to J. C. Penney Company and another customer, upon orders admittedly solicited and sold by plaintiff. The dispute was whether plaintiff was to receive three and one-half percent or six percent on such sales. The evidence was conflicting on this point. Sufficient of the evidence will be mentioned to make clear that such conflict existed. While it is admitted by defendants that plaintiff was employed by oral agreement for a compensation of six percent of the price of goods delivered, it is contended that upon the sales in question there was a special agreement for a commission of three and one-half percent. It is not denied that plaintiff obtained orders in the amount found by the court. Defendant Belond testified that when the Penney order came in, for some 5,000 dozen sweaters, there was some question whether it would be accepted and that plaintiff agreed to accept three and one-half percent commission on that order. Plaintiff testified that the Penney Company had forwarded labels which, according to their purchase order, were to be sewed onto the sweaters which they were purchasing, and that he, plaintiff, offered to accept three and one-half percent commission upon the condition that the labels would be affixed as ordered. It is conceded that defendants declined to affix the labels but used ‘pin tickets' instead, and that the labels were returned to the Penney Company. Belond testified that the refusal of defendants to pay the full six percent commission was due to the fact that the Penney sales were made outside of the agreed territory in which plaintiff was to sell. Plaintiff denied there was such limitation of his territory and in this he was corroborated by the testimony of defendant Kaplar, given by deposition. In view of this conflict in the evidence upon that point and of plaintiff's positive testimony that he did not degree to reduce his commission to three and one-half percent on deliveries made to Penney Company, without labels attached, the finding that plaintiff's commission agreement on the Penney sales was six percent is supported by the evidence. The evidence was equally conflicting as to whether plaintiff agreed to accept a smaller commission on sales to another customer. It is conceded by defendants that the sales upon which they refuse to pay six percent commission were made at the prices charged upon all other sales. Plaintiff's commissions were properly computed at the six percent rate.

At the conclusion of the trial defendants amended their answer to plead an accord and satisfaction. In an attempt to prove that plaintiff had been paid in full they produced a number of checks payable to plaintiff, and cashed by him, which bore notations ‘commission in full to date’ and wording of like import. These checks, it is contended by defendants, and not denied by plaintiff, represented some commissions at three and one-half percent. Defendants also produced a letter written by plaintiff mentioning a shipment to Penney of $1,200 worth of goods and asking for his commission thereon of $420, and they produced another letter in which plaintiff had figured commissions on shipments at three and one-half percent. It is the contention that by the receipt of these payments plaintiff became estopped to claim a greater commission than three and one-half percent on the orders in question, and that the payments constituted an accord and satisfaction. Plaintiff testified that when he found the sweaters were being shipped to Penney without labels he refused to consent to the two and one-half percent reduction in his commissions, demanded full commissions of six percent and that defendants said, ‘We will settle up with you at the end of the year. We are not going to cheat you,’ and that defendant Kaplar said, ‘It is just a matter of record I am not going to cheat you when I give you a statement you will get everything that you have coming to you.’ From the evidence as a whole the court was justified in finding that although plaintiff accepted commissions from time to time at the rate of three and one-half percent, he continued to insist that he was entitled to receive six percent on all deliveries and that defendants led him to believe that they would pay him the difference of two and one-half percent at the end of the current year. The findings against the defenses of accord and satisfaction and estoppel are therefore supported by the evidence.

The judgment is affirmed.

SHINN, Acting Presiding Justice.

WOOD, J., and KINCAID, J. pro tem., concur.