Borg-Warner Corp. v. Ostertag , 18 Wis. 2d 484 ( 1963 )

Brown, C. J.

(dissenting). I am not able to join in the opinion in which the majority of my brethren concur.

Mr. Ostertag had been employed by the year, with each year commencing July 1st. It had been the practice for the compensation for a subsequent year to be determined sometime after July 1st; compensation for 1956-1957 was determined at the end of August, 1956. No arrangement had been made by July 1, 1957, for the year then commencing. Ostertag made frequent inquiries thereafter but was told that his compensation had not yet been determined. On November 1, 1957, by letter, his employer informed him of the terms of his 1957-1958 employment. These gave him an increase of $50 in monthly salary but decreased his year-end bonus. Ostertag was dissatisfied and complained but he did not quit or give notice he would quit. Instead he continued until February 20, 1958, to do his usual job and accepted increased responsibilities, and he collected the increased monthly pay together with commissions applicable to his next year-end bonus. Then he left plaintiff company for other employment. He admits that upon doing so he agreed to repay to the plaintiff a $720.71 overdraft, which plaintiff had demanded. While defendant admits this, he testified that he never intended to keep the promise but made it only in order to keep the appellant from bothering him about it. The $720.71 is the overpayment alleged by plaintiff on commissions to which Ostertag would have been entitled by sales already made by him, according to the November 1, 1957, letter, if Ostertag had completed the 1957-1958 year, but to which plaintiff claims defendant was not entitled when the latter quit in midyear.

I consider that by continuing to work without reservation and by taking the compensation stated in the November 1, 1957, offer, Ostertag accepted that offer and thereby a contract between the parties came into existence according to which contract the issues must be resolved.

In my opinion, the judgment should be reversed, judgment entered in favor of plaintiff on its complaint, and defendant’s counterclaim dismissed.

I am authorized to state that Mr. Justice Currie and Mr. Justice Gordon join in this opinion.