Markovitz v. Interstate Furniture Co. , 7 R.I. Dec. 98 ( 1931 )

BLODGETT, P. J.

Heard without the intervention of a jury.

For plaintiff: Peter W. McKiernan. For defendant: Robinson & Robinson.

Action by plaintiff to recover commission and salary claimed to be duo from defendant.

Plaintiff was a salesman and collector for a corporation engaged in selling furniture upon tbe installment plan. As sucb be was entitled under an agreement with defendant to a salary of $45 a week and an allowance of '$12 a week for expenses in running an automobile. Tbis is conceded by defendant.

In regard to tbe commission to be paid for sucb sales of furniture as might be made by plaintiff, there is a dispute between tbe parties. Plaintiff’s duty was to make sales and collections in Rhode Island and Connecticut. On sucb sales be was entitled to receive a certain commission, in some cases five per cent, and in some ten. He also claimed to 'be entitled to a commission for sucb sales as were made by other salesmen upon tbe floor of tbe store of defendant, provided sucb sales were made to customers sent by him to such store. Tbe custom of plaintiff was to give to sucb customers bis personal card, such card to be delivered to tbe salesman making tbe sale upon the floor, and it then became tbe duty of sucb salesman in reporting sucb sale to the office to record on tbe sales slip tbe name of plaintiff, thus entitling him to a commission on such sale.

Defendant claims tbe agreement was that plaintiff, to entitle him to a commission on sucb sales as were made by other salesmen upon tbe floor, should provide the customer with what was termed a “prospect card.” That in sucb case plaintiff would be entitled to receive a commission only when sucb sale was accepted by defendant and tbe amount due on such sale had been paid by tbe purchaser. Defendant claims sucb a system to be necessary in a business where thousands of sales were made in tbe course of tbe year and tbe initial amount paid by tbe customer was sometimes only one dollar.

Plaintiff has filed a bill of particulars setting forth each sale upon which a commission is claimed.

Defendant agrees that as to certain names in such bill the plaintiff is entitled to a commission. The 'amount conceded to be due on such sales is $172.20 and a further commission of $35.60 on a sale to one Lord, makes a total of $20S.

The bookkeeper for defendant testified from the records of defendant the accounts as they appeared upon such records as to each sale claimed by plaintiff. Many of them did nob appear upon such records. Many of such sales were cancelled and tbe goods returned to the store.

The Court is of the opinion that the version of the agreement as maintained by defendant is the more reasonable and that plaintiff is only entitled to a commission upon such sales as were made thereunder.

At the time plaintiff was discharged by defendant there was due defendant on collections made by plaintiff the sum of $58.49.

Defendant further claims that $150 was advanced to plaintiff upon accounts which subsequently were unpaid by the purchasers and cancelled by the defendant.

At the time of discharge plaintiff was further entitled to salary and expenses for one week, vjz.: $57.

This makes the amount due plaintiff $265. Deducting from said amount $208 due defendant from plaintiff leaves a balance due of $57. Upon this plaintiff is entitled to interest of $6.83.

Decision for plaintiff for $63.83 and costs.