Hendricks v. Leopold

• Decision Date: 05 March 1892
• Citation: 18 S.W. 638
• Parties: HENDRICKS v. LEOPOLD <I>et al.</I>
• Court: Texas Court of Appeals

Page 638

18 S.W. 638

HENDRICKS v. LEOPOLD et al.

Court of Appeals of Texas.

March 5, 1892.

Appeal from Dallas county court; E. G. BOWER, Judge.

Action by A. J. Hendricks against J. Leopold & Co. Verdict and judgment for defendants. Plaintiff appeals. Reversed.

Thompson & Thompson, for appellant.

DAVIDSON, J.

Appellant, A. J. Hendricks, plaintiff below, instituted this suit on May 20, 1890, in the county court of Dallas county, against J. Leopold & Co. Appellees made affidavit and gave bond for garnishment, had writs issued and served on various garnishees in this state, who answered, admitting indebtedness in various amounts to appellees. Appellees answered on August 5, 1890, by motion, demurrer, and general denial. On January 16, 1891, appellant filed his original amended petition, in which he claimed, as in his original petition, that the appellees were indebted to him in the sum of $383.91, with interest thereon at 8 per cent. per annum from the 30th day of June 1888, when said sum became due and payable. To support this recovery, appellant alleged, among other things, that on or about the 14th day of June, A. D. 1886, he was employed by appellees to travel for them, and to sell their goods in the state of Texas; that appellees agreed to pay appellant a salary of $60 per month and his traveling expenses; that afterwards, to-wit, on or about January 1, 1887, appellant's salary was increased to $75 per month and his traveling expenses; that about July 15, 1887, the contract between appellant and appellees was again changed. By the terms of the last contract, appellees agreed to pay appellant — First, a cash salary of $75 per month for the time he traveled for them; second, all his traveling expenses; and, third, at the end of 12 months from that date, or at the termination of appellant's employment, if the same should occur before the expiration of 12 months, an estimate should be made of all the orders for goods taken by appellant, and filled by appellees, from June 14, 1886, the date he entered appellees' employ, and appellees were then to pay him the difference between the cash salary of $65, then $75, per month, and 5 per cent. on said sales. In other words, appellant's salary should be based on 5 per cent. of his sales, with a guarantied salary of so much per month; and at the end of 12 months, or the termination of the employment, the appellant should receive, in addition, a sum equal to the excess of 5 per cent. over the cash salary, if the said 5 per cent. should amount to more than the said cash salary. Appellant further alleged that the appellees were indebted to him for various sums paid out for their account; also for $25 charged to appellant, and taken out of his cash salary unjustly, and for other small amounts, all of which are specified in Exhibit A. Appellant further alleged that he remained in appellees' employ until June 30, 1888, and fully performed his part of the contract; that the 5 per cent. on sales was greater than the cash salary paid him by a...