Leaman & Clesi, Inc. v. Bauman
| Decision Date | 28 June 1934 |
| Docket Number | 14735 |
| Citation | 155 So. 463 |
| Parties | LEAMAN & CLESI, Inc., v. BAUMAN |
| Court | Court of Appeal of Louisiana — District of US |
Rehearing denied Oct. 1, 1934.
Alex W Swords, of New Orleans, for appellant.
S. J Tennant, Jr., of New Orleans, for appellee.
This is a suit for a balance alleged to be due on a promissory note. Defendant Bauman admits that he executed the note and that he received cash therefor, but he contends that the note was given merely for bookkeeping purposes and that it was understood that it was not to be paid except out of commissions to be earned by the maker as an employee of plaintiff. In a reconventional demand, Bauman asserts that during the course of his employment by plaintiff corporation, or its precedessor, to which the note was given, he was misled as to the amount of commissions he had earned, and he prays for judgment against plaintiff for a large amount to which he claims to be entitled in addition to the sum which would have been required to retire, in full, the note which forms the basis of the main demand.
Plaintiff corporation is successor to the partnership by which Bauman was, for a time, admittedly employed. The partnership was engaged in the business of dealing in stocks and bonds and other securities. In its business it employed salesmen on a commission basis.
On or about April 2, 1932, defendant made his first contract with the said partnership. He avers that, at that time, he was employed as a salesman and that, as such, he was entitled to a commission of 50 per cent. of the profits on all deals initiated by him.
Plaintiff admits that on July 25, 1932, Bauman entered the employ of the former partnership as a salesman, but asserts that even after that date he was not entitled to 50 per cent. on all deals initiated by him unless those were consummated without the collaboration of any other salesman, and plaintiff further and especially asserts that between April 2, 1932, the day on which plaintiff first entered the office of the firm, and July 25, 1932, the day on which his employment as a salesman is admitted to have commenced, his status was not that of salesman or employee of the firm, but was that of private employee of one of the firm's salesmen, a Mr. H. C. Curley. It is contended by plaintiff that Curley personally employed Bauman as a "scout," or, to use another term apparently in common acceptance in the trade, "bird dog."
The duties of Bauman as an employee of Curley's were to run to earth "prospects" who might be interested in trading with or through the firm and particularly through Curley, as salesman. The further contention is made that at no time prior to July 25, 1932, did the firm agree to pay Bauman for his services, and that such amounts as were given him were paid on request of Curley and were charged by the firm against the said Curley; in other words, were paid out of commissions earned by Curley.
It is conceded that the only questions involved are of fact. They are:
1. What was the status of Bauman between April 2, 1932, and July 25, 1932? And
2. On what commission basis was he employed after July 25, 1932?
We find that the parties have agreed as to the amounts and we are, therefore, spared the necessity of delving into the most complicated mass of figures which are found in the record.
In the court, a qua, there was judgment dismissing the main demand and in favor of Bauman on the reconventional demand in the sum of $ 414.33
The record is voluminous and contains, on the one hand, testimony of many former employees of Leaman & Clesi who support the charge of Bauman that, in the first period mentioned, he was employed as a salesman by the firm, and who also support his charge that there was an understanding between the firm and all salesmen that the amounts advanced to such salesman, and for which they gave their notes, were to be repaid only out of commissions to be earned, and that it was further understood that if a salesman should leave the employ before he should have earned a sufficient amount to repay the loan, the balance was to be remitted.
As opposed to this evidence we find the testimony of the members of the firm, of the bookkeeper, and of several other employees and former employees to the effect that the understanding was exactly to the contrary and furthermore the Bauman, during that first period, was not employed by the firm.
In view of the fact that the court, a qua, found in Bauman's favor, we would be disposed to accept that finding...
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