J. Justus Bodley, Conrad G. Moffett and Byron, Bodley & Pape, all of Philadelphia, for appellant.
David V. Shapiro, and Shapiro, Rosenfeld & Stalberg, all of Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
The court below sustained defendant's preliminary objections by way of demurrer to plaintiff's complaint in assumpsit.*fn1 The order provided that plaintiff could file an amended complaint within twenty days. Plaintiff refused to amend, and judgment was entered in favor of defendant.
Plaintiff, a dress designer, entered into a written contract of employment with defendant, a manufacturer of women's wear, for a term of one year from August 23, 1949, and for further terms of two years until either party gave written notice of termination sixty days prior to the expiration of the then current term. The provisions of the contract relating to plaintiff's compensation were as follows:
'4. Designer shall receive and Employer shall pay the following compensation:
'(a) Two and one-half per cent (2 1/2) commission based on annual merchandise sales, less discounts, made by Employer over and above One Million Dollars ($1,000,000.00); * * *
'(b) Designer shall not be entitled to commissions on discounts, sales cancelled, merchandise returned,
merchandise not paid for, and/or sales to the United States Government or any of its sub-divisions, it being understood and agreed that commissions so determined shall be Designer's sole and only compensation (but Designer shall nevertheless receive against commissions the drawing account hereinafter provided for.
'5. Employer agrees to advance to Designer Two Hundred Dollars ($200.00) during each week that the employment under this contract continues, as advances against the said commissions. All sums so advanced are to be deducted in final accounting from ...