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October 7, 1966

Bernard F. MARCIN, Plaintiff,

The opinion of the court was delivered by: ROSENBERG

 This is here on cross motions for summary judgment filed by the plaintiff and the defendant under Rule 56 of the Federal Rules of Civil Procedure on the grounds that there is no genuine issue as to any material fact and each claims that he is entitled to judgment as a matter of law.

 This action was brought by Bernard F. Marcin against the defendant, Darling Valve and Manufacturing Company, for payment of commissions which the plaintiff claims inured to him as the result of services rendered to the defendant as a commission salesman under a contract of employment.

 The facts giving rise to this action as they concern the employment relationship between the parties are not disputed and are as follows: The plaintiff was employed by the defendant in 1954 as a commission salesman. In 1956 the parties entered into a new contract of employment, on a standard printed form prepared by the defendant, under which the plaintiff worked as a commission salesman soliciting sales orders for the defendant until 1964. The agreed upon compensation was expressed in terms of a base salary plus a percentage commission on the sales orders arising in, or shipped into, the plaintiff's territory. The contract also provided that payment of the commission was deferred until the close of the accounting period during which the goods covered by the sales order were shipped.

 On or about February 14, 1964, the plaintiff received a letter from the defendant requesting that the plaintiff sign a new contract which was enclosed. The new contract tendered was the same printed form as the existing contract but contained a rider providing for a reduced rate of commission on "nuclear orders". The new contract was to be retroactively effective to January 2, 1964. The plaintiff corresponded with the defendant to determine how the new tendered contract would affect his commissions on sales orders *fn1" which he had placed prior thereto. The defendant stated its intent to the plaintiff to have the new contract apply retroactively to the orders already on the defendant's books. While correspondence and discussions were going on between the parties with regard to the new contract, the defendant sent a notice to the plaintiff dated April 7, 1964, exercising its right to terminate the existing contract by the giving of thirty days written notice.

 The parties were unable to come to agreement on the terms of a new written contract, and none was ever entered into by them. The employment contract of January 2, 1956 and the plaintiff's employment thereunder ceased on May 7, 1964 as the result of the cancellation notice sent by the defendant on April 7, 1964. Although the plaintiff's employment under the contract ceased on May 7, 1964, at the defendant's request he remained with the defendant as an employee at will to enable the company to locate a successor. The plaintiff's temporary employment was terminated on June 19, 1964. The plaintiff was paid commissions for the sales orders arising during this temporary employment (May 7, 1964 to June 19, 1964), and no issue with regard to it is raised in this action.

 The defendant continued until September 19, 1964, to pay the commissions due the plaintiff on the sales orders received by the defendant on or before May 7, 1964, but after September 19, 1964, the defendant refused to pay commissions on such sales orders received on or before May 7, 1964, for its reason that the shipments were made after September 19, 1964. The plaintiff claims commissions still due him in the amount of $39,980.33.

 At the argument both parties agreed that the first question presented is one of law of the matter of liability. The plaintiff contends that all of the proceedings present a question of law, so that disposition may be made. The defendant maintains that while the liability question is one of law, the question of damages, should liability be found as a matter of law, is a matter for the jury's determination.

 The contract of employment governs the terms and conditions of the employment relationship. The following provisions are pertinent here:

 "Termination of Employment:

Resignation or Discharge:
If the salesman should voluntarily resign or be discharged for any reason, he will be credited with standard commissions rates upon all sales in company records as of the official date of employment termination. The salesman will be paid commissions covering such sales when the orders are shipped, but no commission shall be paid on material not shipped within three months of date of termination.


In the event of the salesman's death his heirs, estate or personal representative will be credited with and receive payment on all sales and commissions under the conditions and as ...

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