Gurwell v. Shimeall ( 1913 )

The opinion of the court was delivered by

Smith, J.:

The appellee had been employed for several years by appellant as manager of a store. The compensation for the services, it is agreed, was a certain salary per month and a commission. Settlements had been made' from year to year without disagreement. After appellee had quit the service, appellant sold the remaining stock without notice to appellee and at a considerable reduction from the cost price. During their association appellee loaned appellant $1000 and took appellant’s note therefor, which fell due before this action was brought to recover the amount due thereon. The appellant pleaded several set-offs, all of which were agreed to or found in his favor, except that he pleaded and testified that by the contract of employment the appellee was to receive a commission only on the net profits of the business; that appellee had received from year to year a commission on the goods sold at retail; that the loss between the wholesale price and the price at which the remaining stock had been sold reduced the net profits and that appellee had been overpaid by the amount of his percentage thereof, for which appellant should be allowed an offset in the amount pleaded.

The appellee, however, testified that by the terms of the .employment contract- he was to receive, in addition .to his monthly salary, the commission on the profits on goods sold at retail, and that there was no agreement that he was, to. bear any portion of the loss in question.

The jury evidently believed appellee’s evidence and returned their verdict accordingly, and the court approved the verdict by rendering judgment for the amount so found. Where an issue of fact, upon which the evidence is conflicting, determines the verdict and judgment, and a jury returned a verdict thereon which was approved by the trial court, ánd judgment has been accordingly rendered, this court will not disturb the judgment. So frequently has the question involved been decided by this court that a citation of authorities is unnecessary.

The judgment is affirmed.