Appeal, No. 216, Oct. T., 1957, from judgment of Court of Common Pleas of Lancaster County, March T., 1955, No. 55, in case of Louis J. E. Fritz v. Gilbert I. Lyons, trading and doing business as Insulation Company of Penna. Judgment affirmed.
F. Lyman Windolph, with him Charles V. Snyder, Jr. and Windolph, Burkholder & Hartman, for appellant.
William C. Storb, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 550]
Louis J. E. Fritz filed a complaint in assumpsit against Gilbert I. Lyons. Plaintiff's action was based on a two-year written contract of employment. Defendant filed an answer admitting the execution of the contract but averring that, "by mutual consent of the parties, said agreement was never put into effect". The answer also contained a counterclaim, to which plaintiff replied. At the trial, after the introduction of plaintiff's testimony, counsel for defendant moved for a compulsory non-suit on the ground of "estoppel by
[ 185 Pa. Super. Page 551]
acquiescence". This motion was overruled. Both parties presented points for binding instructions, which were refused. The case was submitted to the jury by the trial judge in a charge concerning which no complaint is made. After a verdict for the plaintiff, defendant filed a motion for judgment n.o.v., which was overruled. Judgment was entered on the verdict, and this appeal followed. The facts are set forth in the following excerpt from the opinion of President Judge WISSLER:
"According to the testimony plaintiff was employed by defendant, who operates an insulation and screen and storm window business in the City of Lancaster, as a mechanic from September, 1945 to June, 1948 and from June, 1948 until January, 1955 he was employed by defendant as a salesman. Up to May 29, 1952 he sold combination storm windows and screens, aluminum doors and insulation. After that date he was made manager of the window division. The employment of plaintiff was under an oral agreement or understanding until May 29, 1952 when a written contract, furnished by defendant, was entered into between plaintiff and defendant. Under the terms of said written agreement plaintiff was employed as manager of the window division for a period of two years from the date of the agreement. His duties consisted of the following: '(a) Assisting in the hiring, training and supervision of salesmen; (b) Supervision of the installation and servicing of all combination storm windows and screens sold by employer's firm; and (c) Selling and soliciting sales of combination storm windows and screens in the territory defined by the employer'. He was to receive for such services the following: '(a) Two per cent (2%) on the gross sales price of all combination storm windows and screens sold by employer's firm; (b) One-half (1/2) of all commissions
[ 185 Pa. Super. Page 552]
paid to junior salesmen working in the window division of the employer's firm. By junior salesmen is meant those salesmen who are not fully trained; (c) A commission of fifteen per cent (15%) of the selling price on all sales of combination storm windows and screens made by the employee; and (d) An automobile allowance of Fifty dollars ($50.00) per month'.
"Plaintiff testified that he complied with the terms of the contract by training and supervising salesmen and the installation and servicing of storm windows and screens. It is agreed that if plaintiff is entitled to recover he would be entitled to the additional car allowance of $565.23; the sum of $1,031.32 being the 2% ...