McCormick v. Hamilton Business Systems, Inc.

• Decision Date: 26 June 1985
• Docket Number: No. 16501,16501
• Citation: 175 W.Va. 222,332 S.E.2d 234
• Court: West Virginia Supreme Court
• Parties: Carole McCORMICK v. HAMILTON BUSINESS SYSTEMS, INC. Case

Page 234

332 S.E.2d 234

175 W.Va. 222

Carole McCORMICK v. HAMILTON BUSINESS SYSTEMS, INC.

Case No. 16501.

Supreme Court of Appeals of West Virginia.

Submitted April 23, 1985.

Decided June 26, 1985.

Syllabus by the Court

1. "Where, in the trial of an action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong." Syl. pt. 2, French v. Sinkford, 132 W.Va. 66, 54 S.E.2d 38 (1949).

2. "Whether evidence offered is too remote to be admissible upon the trial of a case is for the trial court to decide in the exercise of a sound discretion; and its action in excluding or admitting the evidence will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. pt. 5, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945).

Arden J. Curry, II, Pauley, Curry, Sturgeon & Vanderford, Charleston, for appellee.

Allen H. Masinter, Robert P. Martin, Lewis, Ciccarello, Masinter & Friedberg, Charleston, for appellant.

BROTHERTON, Justice:

The appellee, Carole McCormick, was employed by the appellant, Hamilton Business Systems, Inc., commencing March 15, 1982. Prior to the date of employment Carole McCormick met twice with Templeton Hamilton, Jr., the president, managing officer and sole stockholder of Hamilton Business Systems, Inc. During these meetings, the parties discussed the terms of McCormick's employment contract. The terms of the agreement were never reduced to writing. No one else was present at either meeting.

At trial there was conflicting evidence regarding the terms of the employment contract. McCormick testified that she was to be the exclusive salesperson selling business machines to "GEM" (Government, Educational and Medical) customers, at a salary of $800.00 per month for three months. At the end of the three-month period, she was to automatically be placed on a commission basis. McCormick testified that the shift in her employment from a salary-training basis to a pure commission basis was an automatic event triggered by the expiration of ninety days after she began employment. She further testified that after the ninety-day salary-training period she was to be paid a commission on all equipment installed in her exclusive sales area, whether or not she actually procured its sale.

Templeton Hamilton, Jr., was the only defense witness allowed to testify at the trial. Mr. Hamilton testified that Miss McCormick was hired under the same terms and conditions as all his sales representatives and that according to the custom and practice of his company, sales personnel would not be converted to a commission basis until he and the employee met and agreed on a specific date for the conversion. He testified that no such meeting took place with Carole McCormick.

On July 23, 1982, after giving two weeks' notice, Carole McCormick terminated her employment with Hamilton Business Systems, Inc. Before she left Miss McCormick and Mr. Hamilton met for the purpose of finalizing Miss McCormick's termination. Mr. Hamilton presented to her a company check in the amount of $1,079.60, detailing calculations used in arriving at the stated amount.

On September 1, 1982, Carole McCormick filed suit against Hamilton Business Systems, Inc., in the Circuit Court of Kanawha County, alleging an additional $13,000.00 to be due and owing to her for unpaid commissions on installed equipment in her sales area. At trial the appellant seemed to base its theory of the case on the proposition that there was never a meeting of the minds of the parties for the establishment of an employment contract, and secondarily, that, if there was an employment contract, the acceptance of the check at the July 23rd meeting formed an accord and satisfaction. At the conclusion of the evidence, the appellant offered instructions on accord and satisfaction. The court gave the instructions over the plaintiff's objections. The trial court also denied the appellant's motion for a directed verdict at the conclusion of the evidence, ruling that there was sufficient evidence on both sides to make the issue one for the jury to decide. The jury returned a verdict in favor of Carole McCormick in the sum of $7,250.22. Hamilton Business Systems, Inc., now appeals...