52 Cal. App. 2d 137 | Cal. Ct. App. | 1942
Respondents employed appellant as manager of the sport-goods department of their hardware store in 1935. An oral agreement was then made for the payment to appellant by respondents of a salary segregated as follows: $28.50 a week for his services in the sport-goods department, and $21.50 a week for his services as advertising manager of the entire store. In addition, Allen was to be paid a 10 per cent bonus which is based upon a sales quota of $20,000 a year and a gross profit margin of 27% per cent on sales from the sport-goods department. No bonus was to be payable unless the sales of his department exceeded the
During the second day of trial respondents moved to amend their answer to the cross-complaint by interlineation and by permission of court added after the word cost, as italicized, the words “based on inventory value to cross-defendants” rather than “cost of the goods to plaintiffs.”
Appellant now claims that the court erred in allowing the amendment at that time to his prejudice because the allowance of the amendment removed an admission upon which he was entitled to rely under the pleadings, citing Bank of Woodland v. Heron, 122 Cal. 107 [54 Pac. 537], We see no merit to this point. This amendment was offered after testimony was taken on the question of how the cost was to be determined. The admission in the pleadings, if it constituted such, was only an admission as to the facts set forth, but was not an admission as to the method by which the cost was to be determined. The effect of the change was to charge to appellant his share of any depreciation in price of the merchandise in the sport-goods department because of goods be
Appellant for several years served in the capacity of advertising manager and also as manager of the sport-goods department, and drew the apportioned salaries. It appears from respondents’ evidence that about January 1, 1939, another advertising manager was hired and paid a salary in place of Allen. The evidence discloses that Allen was then told that “his department was falling behind and also that the advertising was being neglected and that we would have to make other arrangements insofar as the advertising was concerned . . . and that he would be relieved at the beginning of 1939 of that responsibility, and, of course, also of the income for it. . . . I told him, however, we wouldn’t reduce the amount of his check for the time being, but the 21.50 that he had been paid as advertising manager would be considered as a cash advance. . . .” Respondents continued to pay appellant a total of $50 per week over the remaining period but charged $21.50 per week, the amount he had been receiving as advertising manager, against his bonus account. Allen denied any such change in arrangements and contended that the $21.50 per week was not a proper charge against his bonus, However, he did admit that he had a conversation
The only remaining question presented is whether appellant was entitled to have his bonus figured at the end of the year upon a basis of the original cost to the company of the goods on hand, or whether the cost should be determined from the inventory value of those goods. The evidence in this regard, as to the oral agreement, is conflicting. A Mr. Stone, manager of respondents’ store, testified in this respect that he had a conversation with Allen when he was hired and that he told him about handling deductions in the inventory and that he said to him “the cost of goods sold, the inventory’s determining factor, and that our inventories are taken on a basis of the cost or market, whichever is lower.” He also testified that that method of calculating costs was a common practice and that similar deductions were made as to other departments in this store; that he had discussed those methods of deductions with appellant “throughout the time he was there"; and particularly at inventory times it was mentioned about depreciating shopworn merchandise at less value.
Originally, appellant questioned the returns from the year 1938, and charged that respondents had fraudulently charged his department for that year with hundreds of dollars worth of goods which had not been purchased by him. Respondents permitted appellant to employ an auditor to audit the books for that year. Instead of the shortage claimed, he found the
Allen testified that he was present when the 1939 inventory was taken and that some of the employees told him then that the inventories were being “marked down” due to depreciation ; that he knew that if goods were marked down that they would have to be carried on the inventory at the markeddown price the next time they were inventoried and that then “he would be bound by that inventory.” There was no evidence of falsification of any of the accounts between appellant and respondents. The evidence substantiates the court’s findings and judgment.
The judgment is affirmed.
Barnard, P. J., and Marks, J., concurred.