173 P. 700 | Utah | 1918
Plaintiff brought this action to recover the sum of $445 alleged to be due for two diamond rings sold defendants on or about the 1st day of November, 1913. Defendants answered admitting the purchase of the diamond rings, but alleged in a counterclaim that the plaintiff was indebted to defendants for moneys advanced to plaintiff while in the employ of defendants.
It appears that defendants (a partnership) are an engineering concern conducting a business in Salt Lake City; that about January 23, 1911, plaintiff was employed by the defendants to assist in handling defendants’ business. The contract between the parties is in writing, consisting of a letter addressed to the plaintiff by the defendants and the acceptance by plaintiff of the terms outlined in that letter. The proposition contained in the letter is as follows:
“We will pay you a salary of $125.00 per month and traveling expenses, and 10 per cent, of the net profits accruing to this company on any business that you may succeed in closing for us. ’ ’ Further on in the letter it is stated: ‘ ‘ This 10 per cent., of course, would be payable to you on completion of the work.”
“If an employee is to receive a per cent, of the net profits of all sums realized on certain contracts, only the expense necessary on account of such contracts should be deducted, and not any of the expenses incidental to the management of the employer’s business.” 26 Cyc. 1036; Daintrey v. Evans, 148 App. Div. 275, 132 N. Y. Supp. 126.
It follows that there is no prejudicial error in the record, and the judgment is affirmed. Costs to respondent.