Korry of Cal. v. Lefkowitz

• Decision Date: 10 March 1955
• Citation: 280 P.2d 910,131 Cal.App.2d 389
• Court: California Court of Appeals Court of Appeals
• Parties: KORRY OF CALIFORNIA, a California corporation, Plaintiff and Respondent, v. Harold LEFKOWITZ, Defendant and Appellant. Civ. 20663.

Page 910

280 P.2d 910

131 Cal.App.2d 389

KORRY OF CALIFORNIA, a California corporation, Plaintiff and Respondent, v. Harold LEFKOWITZ, Defendant and Appellant.

Civ. 20663.

District Court of Appeal, Second District, Division 2, California.

March 10, 1955.

Rehearing Denied March 24, 1955.

Arkin & Weissman, Culver City, for appellant.

Edward Mosk, Hollywood, for respondent.

FOX, Justice.

This is an action by plaintiff against one of its salesmen to recover 'a balance on an open, mutual and current account.' Defendant appeals from an adverse judgment.

Plaintiff, a Los Angeles concern, manufactures and sells men's ties. In early February, 1952, defendant was hired by plaintiff as a salesman. His territory was Texas and portions of Kansas and Oklahoma. Defendant remained in the employ of plaintiff until August, 1953. Because of the expense of establishing himself in distant territory and his lack of funds, defendant stated 'he would like an advence against his commission.' Such procedure was customary in this business. A weekly advance of $125 was agreed upon. These weekly advances were charged against defendant's earned commissions. Each month a statement of the invoices credited to the account of the defendant showing the commission due him and the advances paid him, together with the debit or credit balance in favor of the parties, was mailed by plaintiff to him. Defendant admitted receipt of these monthly statements. He made no complaint that they did not truly reflect the state of the account between the parties.

As time went on defendant fell behind in his sales so that his advances always exceeded his commissions. Plaintiff thereupon informed defendant that 'the balance due Korry was just getting too high.' In discussing the account in April or May, 1953, with a vice president of plaintiff, defendant stated 'he would wipe out the debt to' plaintiff.

At the time the defendant's services were terminated, the balance by which his advances exceeded the commissions earned by him as reflected by the records kept by plaintiff was $3,206.13. The court awarded plaintiff judgment in this amount, notwithstanding defendant's testimony that he was to have a guaranteed advance.

In his notice to the clerk to prepare the record on appeal, the defendant, in addition to the reporter's transcript, requested a clerk's transcript 'to include the complaint, answer of the defendant, and judgment of the court, and also to include all exhibits admitted in evidence.' As a consequence there are no findings of fact and conclusions of law in the record. Furthermore, the Salesman's Commission Work Sheets, plaintiff's Exhibit 1, which reflected the character and state of the account between the parties, is not among the exhibits. It appears to have been released at the conclusion of the trial, pursuant to stipulation, to counsel for plaintiff, who signed for it on that date.

In the absence of findings of fact and conclusions of law every intendment is in favor of the judgment. Bryant v. Marstelle, 76 Cal.App.2d 740, 744, 173 P.2d 846. In such circumstances 'the reviewing court will assume that the trial court found every fact essential to support the judgment, and when a transcript of the evidence is before the reviewing court it will not weigh the evidence to determine what is true and what is not, but it will search the record for the purpose only of determining whether there is substantial evidence supporting the judgment and will resolve all doubts in favor of the judgment.' Baker v. Baker, 98 Cal.App.2d 424, 426, 220 P.2d 576, 578; In re Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689; Jappe v. Mandt, 130 Cal.App.2d 426, 278 P.2d 940.

Thus searching the record pursuant to this rule we find testimony on behalf of plaintiff indicating that defendant was hired on a commission basis; that he was to have a weekly advance which would be charged against his commissions; that an account was set up on plaintiff's books, kept in the due course of business, correctly reflecting the commissions earned by defendant and the charges against him, which account disclosed that when defendant's commissions for a particular month, as, for example, March, September and November of 1952, exceeded the amount drawn by him, the excess was used to reduce the credit balance at that time; that a copy of these monthly accounting records (which made up the exhibit not before us) was sent to defendant regularly; that he admittedly received the same; and that he did not during the course of his employment make objection to any of the items thereon. There were also conversations between Mr. Kopelow, vice president of plaintiff, and defendant in the spring and summer of 1953, when defendant's advances substantially exceeded his earned commissions, indicating that he was indebted to the plaintiff in the amount of such unfavorable balances and indicating further that defendant so understood the situation,...