Dore v. Glenn Rock Mineral Spring Co.

• Decision Date: 24 October 1911
• Citation: 132 N.W. 906,147 Wis. 158
• Parties: DORE v. GLENN ROCK MINERAL SPRING CO.
• Court: Wisconsin Supreme Court

147 Wis. 158

132 N.W. 906

DORE

v.GLENN ROCK MINERAL SPRING CO.

Supreme Court of Wisconsin.

Oct. 24, 1911.

Appeal from Waukesha County Court; M. S. Griswold, Judge.

Action by Paul G. Dore against the Glenn Rock Mineral Spring Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

This action was brought to recover commission alleged to be due the plaintiff under the following contract: “This agreement made in duplicate this 11th day of June, 1906, between the Glenn Rock Mineral Spring Company, a corporation, party of the first part, and Paul G. Dore, of Waukesha, Wisconsin, party of the second part, witnesseth: That the party of the second part is to have charge of the bottling plant of said corporation, situated in the city of Waukesha, Wisconsin, and to be general manager thereof. The party of the first part, its successors or assigns, hereby agree to hire and employ the said Dore for the term of one year from the 18th day of June, 1906, at a salary of $75, and commission of 10 per cent. on all sales, to be paid in twelve equal and monthly installments at the end of each and every month during the said year.”

The plaintiff entered the service of the defendant under the above contract on the 18th day of June, 1906, and continued said employment until on or about March 1, 1907, and quit the service at the last-named date, for the reason that defendant refused to pay commissions alleged to be due at that date. It is admitted that $75 salary named in the contract is an error, and that the amount should be $900, or $75 per month. Defendant set up several defenses and also a counterclaim, alleging incompetency and want of skill on the part of plaintiff.

The court found: That plaintiff entered into the contract above referred to. That by the contract plaintiff was to have $75 a month, and that said salary of $75 a month has been paid. “That, while in the defendant's employ, through his efforts on the road and otherwise, the plaintiff solicited sales of water for defendant company; he received money from the defendant from time to time to meet and cover expenses; he received in all during the period that he was in such employ to meet and cover expenses about $350, but the plaintiff never kept or rendered an itemized account of his expenses, and is in fact unable to state such amount with any minuteness, but, nevertheless, it does not appear that he was called upon to keep or render such itemized account of expenses, but payments were made to him right along by the defendant to use on expense account, and the defendant company, it appears to the court, was derelict itself in not exacting from time to time itemized statement of expenses, if the company desired to protect itself in that respect; and I therefore find that not anything should herein be allowed as the counterclaim in favor of the defendant and against the plaintiff on account of moneys paid on such expense account. That the aggregate of all sales of water of defendant company while the plaintiff was in the defendant's employ amount to the sum as stated in the complaint--that is, about $5,110--and 10 per cent. commission thereon is $511, and such sum, with interest added, would be and is the sum the plaintiff would be entitled to recover herein for earnings as due him on account of commissions when he quit the defendant's employ, in case he was entitled to recover at all in this action, and in case he was entitled to recovery on all sales; said aggregate amount of sales includes, however, $963 of sales made to J. J. Wise, or to parties through Wise of Minneapolis, which defendant company claims to have been made under its own individual arrangement with Wise, and 10 per cent. of said $963 would be $96.30, which, deducted from $511, would leave $414.70 due the plaintiff, if the plaintiff were entitled to recover on all sales, deducting said sales to or through Wise. That there is in this case under all the evidence no warranty as to plaintiff's competency or...