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LEVAN v. ROYAL PAPER PRODUCTS (11/15/62)

November 15, 1962

LEVAN, APPELLANT,
v.
ROYAL PAPER PRODUCTS, INC.



Appeal, No. 140, Oct. T., 1962, from judgment of Court of Common Pleas of Chester County, Oct. T., 1960, No. 89, in case of Jacques Levan v. Royal Paper Products, Inc. Judgment affirmed; reargument refused December 4, 1962. Assumpsit and counterclaim. Before HARVEY, J. Special finding in favor of defendant; judgment entered for defendant as to stipulated balance. Plaintiff appealed.

COUNSEL

William L. McLaughlin, for appellant.

Richard Reifsnyder, with him MacElree, Platt, Marrone & Harvey, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 199 Pa. Super. Page 506]

OPINION BY WATKINS, J.

This is an appeal from the judgment of the Court of Common Pleas of Chester County, in an assumpsit action on an oral contract of employment, entered upon a jury verdict in favor of the defendant-Appellee, Royal Paper Products, Inc., and against Jacques Levan, the plaintiff-appellant; and from the denial of motions for a new trial and for judgment n.o.v.

[ 199 Pa. Super. Page 507]

This action grew out of an oral employment contract made in January, 1957 and evidenced by conversations between Kurt Strauss, the president of the appellee company and the appellant. According to the record, the conversation was to the effect that the company intended to split a certain sales territory and was looking for two salesmen. He was given the choice of the split territory. He was told that if he accepted the position he would be paid a salary of $100 a week, a travel or auto allowance of $25 per week, plus a commission payable on the 10th of each month, following payment of invoices by customers. He was also told "whatever business is now on the books so far as contracts is concerned that will be, of course, future shipments after you start with us, that is to your credit." There is evidence that the appellant did receive commissions on company receipts from sales made by his predecessor. This evidence was relevant and properly admitted.

The appellant began working February 10, 1957, and continued his employment until July 8, 1960. He has been paid all of his salary and expenses to the date of the severance of his employment. It was stipulated by counsel that under the said oral employment contract, commissions became due and payable to the appellant only upon payment by the customers to the appellee for the merchandise sold. The rate of commission was on a graduated scale depending on monthly volume. Commissions were payable on the tenth of the month calculated on payments received in the preceding month. His claim, therefore, is for commissions alleged to be due him, under the oral agreement, for orders received and sales made by him but not paid to the company until after he left his employment.

By agreement of counsel the trial judge requested the jury to make a special finding rather than a general verdict. The question submitted was as follows:

[ 199 Pa. Super. Page 508]

"Was, under said oral agreement, plaintiff entitled to payment of commissions on sales made by him where defendant was not paid on such sales by customers until after plaintiff left defendant's employment on ...


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