*1 496 action. The unite in the may causes “Uniting of action, of whether be causes they
same several complaint or or denominated formerly legal equitable as were such united affect of action so must all But the causes both. trial, of action different places to the and require parties be must stated separately.” action, the owners being that the first against It is apparent the insurer of one and against automobiles of two separate before the issue us could them, not an action which was of issue affects only The determined. present first action. The defendant cites three defendants 260.11, Stats., for statement that the two cases could sec. However, case not an joined. present been have contract, but was upon separate alternative action causes of action. has been no splitting there affirmed. By Judgment Court.— Lincoln-Mercury, Horne, Kenosha vs. Respondent, Inc., Appellant. 30, 1953. December 3 December *3 a brief oral by the there was and argument For appellant of Kenosha. Earle Munger brief & there was a Vaudreuil by
For respondent Kenosha, Leo E. Vau- Vaudreuil of oral argument by dreuil. The first question presented is whether there
Martin-, J. evidence to is sufficient a support jury’s finding contract existed between parties whereby plaintiff to receive three cent commission on the per gross parts sales. court,
As trial out the learned is by pointed testimony conflict and the had the to believe sharp jury either right Plaintiff an testified such had been party. agreement reached on the he was hired. His day testimony its by terms three cent on sales was per gross parts payable annually was corroborated Wassick. The by Mr. testimony Clausen, of the secretary-treasurer defendant is company, somewhat inconsistent: He denied that contract for any existed, commissions had ever but he admitted that a com- mission would have been had a payable certain been quota met. The believed jury of the plaintiff, which do, it was to entitled and its answer question sub- mitted verdict must be special sustained.
Defendant also contends on this that if appeal there was any between agreement it was parties, void under the frauds, 241.02, statute of sec. Stats.: “In the case shall be following every agreement void unless such or or in agreement thereof, some note memorandum consideration, expressing writing subscribed by therewith: party charged agreement its
“(1) Every terms is to be per- within formed thereof.” making This contention was raised for the first time on motions *4 verdict, after and answered the trial court. is It argued that to according plaintiff’s commissions were testimony to therefore, and that under the of paid annually, rule Brown 662, v. Oneida Mills 226 Knitting 277 N. (1938), Wis. W. 653, cases, and similar the commissions were to be at paid the of one end first of year plaintiff’s day employment. 19, 1949,
Plaintiff’s employment began September in the defendant’s fiscal ended August, After year 1950. 500 commissions, 1950, his demanded when plaintiff
August, off, reason that the “annual” not the Clausen him for put fin- due, the auditors had not was not but because payment thereafter when the books. On various occasions ished with commissions, other Clausen made excuses demanded plaintiff him, he for but on such occasion did no deny paying commissions were due. “annual” once each defines as “occurring year;
Webster In of this yearly.” ordinary meaning applying approved record, trial the word to the evidence presented were court had to conclude commissions right pay- at the end the fiscal able which was within one year, year from the date when the entered into their parties agreement. affirmed.
By Judgment Court.— I am accord with the (dissenting). complete Gehl, J. in their conclusion that there is for majority ample support answer to which was submitted. I jury’s question there for trial am unable however that is agree support determination which the agreement, jury judge’s made, found to have been could have been on the performed of the defendant within from its date. Plaintiff year part testified: "Q. 18, heDid state September [on [Mr. Clausen] 1949]
whether or not when
commission would
payable?
^e
me
A. He told
it would be annually.”
can'be
This
but one construction — that
testimony
given
was to be
after a
service which com
paid
19,
on
The
menced
1949.
contract is within the
September'
75,
of frauds and void.
v.
statute
Chase
Hinkley, Wis.
But the concluded and the judge majority agree discloses that the commission was to be pay- at the able end of fiscal within year, date the year
vo o the date of the contract. If following that was the understand- it must ing appear plaintiff’s No testimony. one else testified that issue. In upon fact defendant denied that any for the agreement payment commissions was ever made. He gave following testimony: Now,
“Q. until the first went year by had no you occasion to talk Mr. Clausen about your commission? A. That’s right.”
There he discloses his own he himself did not consider that he was to be until the end of paid year. he
Following testified: foregoing “Q. Yes, Did ask him later on A. you I again? mentioned it to him when I figured auditors had books posted he told me that was off and he inventory would have to take another.
“Q. Did take another you A. inventory? Yes. 11Q.About when was that? A. The fiscal ended year . . . 1950.” August
I am unable to read out of the last-quoted testimony is all there is in (which the record which bears upon subject) any suggestion discussion was (1) had before the service, end of first plaintiff’s year at (2) the time was it plaintiff was employed understood that he 19, to be 1950, before paid September more than one after the date contract, of the (3) reference to “fiscal year” indicates that it was originally agreed was to be at paid close of defendant’s fiscal year; it is no more than a statement that he understood that the to be inventory taken .was at that time.