Scribner v. National Refining Co.

• Decision Date: 21 July 1932
• Docket Number: 23744.
• Citation: Scribner v. National Refining Co., 169 Wash. 44, 13 P.2d 61 (Wash. 1932)
• Parties: SCRIBNER v. NATIONAL REFINING CO.
• Court: Washington Supreme Court

13 P.2d 61

169 Wash. 44

SCRIBNER v. NATIONAL REFINING CO.

No. 23744.

Supreme Court of Washington

July 21, 1932

Department 2.

Appeal from Superior Court, King County; Samuel R. Stern, Judge pro tem.

Action by B. R. Scribner against the National Refining Company. From judgment for plaintiff, defendant appeals.

Reversed and remanded.

William A. Gilmore and W. W. Montgomery, both of Seattle, for appellant.

Joseph H. Griffin, of Seattle, for respondent.

TOLMAN, C.J.

Respondent as plaintiff, sued for the recovery of salary and commissions earned as a salesman. A trial to a jury was had, resulting in a verdict in favor of the plaintiff in the sum of $1,050. From a judgment on the verdict the defendant has appealed.

The respondent testified in a rather general and vague way to an agreement, made the latter part of the year 1928 or early in 1929, by which he was employed as a salesman on a straight salary of $150 per month plus commissions on oil sold. The purpose of the employment was to introduce and sell in Seattle and vicinity a new product then being manufactured and put on the market by the appellant. Respondent testified to calling upon prospective customers throughout the entire year of 1929. He said that he sold plenty of oil, but could give but little evidence of sales actually made.

Six witnesses were called to corroborate him, all operators of service stations, public or private, and all testified that respondent repeatedly and over a period of some weeks or months solicited their patronage. Three testified that they bought oil from him, and three testified that they did not buy.

This is the whole of respondent's case in chief, and it is remarkable (a) for the vagueness of the testimony as to his employment on a salary; (b) for the entire failure of the evidence to show that respondent kept regular hours, made daily reports, or that he devoted his entire time and attention during business hours, and continuously throughout the time he was employed, to his duties, as is the usual custom where compensation is by regular salary; and (c) for the frank admissions that, although after the first month he demanded his pay monthly or oftener, yet he was never paid anything whatever on account of salary either during the entire year when, as he testified, the employment continued, or afterwards up to the time of trial.

The so-called corroborating testimony is rather meager even upon the point of his making an honest and thorough going attempt to sell on commission. But however that may be, it does not go to the question of employment on salary at all, and in fact the desultory character of the work shown to have been done indicates rather that the selling of oil was a side line to which respondent devoted only such time as he saw fit, and of course is consistent only with compensation on a commission basis.

The defense was an absolute denial of any employment on salary. Appellant's managing officer, with whom respondent had testified that the contract of employment was made, testified that he was absent from Seattle from the middle of December 1928, to March 11, 1929, and that it was not until three weeks later that the question of any employment was discussed, and then the only discussion and the only agreement was to the effect that respondent might sell oil on commission in connection with the other activities in which he was then engaged; his earnings in the way of commissions to be applied on an indebtedness already owing from him to appellant's managing officer. It was further shown that during the time respondent now claims many months' salary was due him, he borrowed money for his personal needs from the very man who should have paid the salary, and gave to him a chattel mortgage on his automobile as security. This transaction seems to be admitted by respondent in his testimony on rebuttal.

With this character of evidence Before it, the jury returned a verdict, not for one year at $150 per month as sued for, but for the sum of $1,050 only. We see no logical way of...