Dokken v. W. L. Huffman Automobile Co. , 40 S.D. 286 ( 1918 )

GATES, J.

Plaintiff was employed by defendant on July 1, 1916, as manager of its Sioux Falls branch office. It is conceded by defendant thialt his salary .was to ¡be $100 per month. It is claimed by the plaintiff, but denied by defendant, that in addition to the salary he was to receive 'a commission of $5 per oar upon all cars delivered from the brandh office. Defendant also claimed, but plaintiff denied, that the employment was -with the understanding that either party might discontinue the agreement at any time on notice to the other party. Plaintiff was notified, on Ootoiber 5, 1916, that thereafter he would receive compensation solely upon a commission 'basis. From a judgment for plaintiff for the amount of lids October salary and total commissions, less certain agreed defections, and from an order denying a new trial, defendant appeals.

The 'above-mentioned issues of fact involved the credibility o.f the witnesses. The verdict of the jury settled them in plaintiff’s favor. Spaulding v. Pitts, 26 S. D. 78, 127 N. W. 610.

The aidloiptedi estinnaitfcfa iof wages hieing ,by tíre month, it is presumed, in the absence of an agreement 'to' the contrary, that tli.e 'employment was by -the .month. C. C. § 1477. Therefore defendant coukl mot, by notice gvilven on the 5 th day of October make a change in the amount or basis of plaintiff’s compensation for that month without plaintiff’s doosent. Such notice would only be effective beginninig with the first of the following month. Dodson-Braun Mfg. Co. v. Dix (Tex. Civ. App.) 76 S. W. 451. The evidence fails to show such consent bjr plaiintiff.

The judgment and order appealed from are affirmed.