Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
The plaintiff-respondent, Morris Sokol, was employed by the defendant-appellant, Milton J. Liebstein, t/a United Rubber Machinery Exchange, as a salesman and assistant manager. Plaintiff's employment commenced on or about November 25, 1946, and was terminated on September 14, 1948, at which time he demanded and was refused the payment of additional monies claimed by him under his employment agreement. Whereupon, the plaintiff instituted the present action against the defendant.
In his complaint the plaintiff charged: (1) that defendant agreed to guarantee him a minimum annual income of $5,000, against which he had a drawing account of $60 per week, later increased to $75 a week, on which there was an unpaid balance of $2,603.30; (2) that commissions remained unpaid for certain sales and purchases effectuated in defendant's behalf, and that after allowing credit for base pay received, there was a balance due of $3,395; and (3) that he was unlawfully discharged without notice, entitling him to an additional two weeks' pay amounting to $192.31. The third count was withdrawn during the trial.
Defendant admitted hiring plaintiff, but contends that he was engaged on a straight salary of $60 per week, later increased to $75, to perform duties assigned to him; that the nine transactions on which plaintiff claims commissions were consummated by the defendant and not by the plaintiff.
The jury returned a verdict in favor of the plaintiff and against the defendant in the amount of $3,395, besides costs. Whereupon, the defendant applied for a new trial of all the issues on the grounds that the verdict was contrary to the weight of the evidence; that it was the result of mistake, passion and prejudice on the part of the jury; and on the further ground of newly discovered evidence. At the conclusion of the argument of the motion, the verdict was ordered to be set aside and a new trial directed, unless the plaintiff would agree to the reduction of the verdict to the sum of $2,603.30 and costs. The plaintiff having consented
to the reduction of the verdict without prejudice, the judgment was accordingly entered, from which judgment the defendant appeals.
The defendant contends that the verdict is contrary to the weight of the evidence; and that the trial court erred in setting aside the jury's verdict and entering a judgment based upon its own finding, asserting that the proper action would have been to set aside the entire verdict and grant a new trial of the issue.
We are of the opinion that the dispositive issue is the propriety of the trial court's action in setting aside the jury's verdict based on a finding involving commissions on sales effectuated by plaintiff and reducing the verdict to conform to the difference between the salary paid plaintiff and the $5,000 guaranteed annual income.
The evidence was in sharp conflict as to the negotiations leading to plaintiff's employment, the terms of his employment agreement and whether he actually effected the nine transactions he alleges. The trial court charged the jury, inter alia , as follows: "If you find from the facts and the law as I have explained it to you, that there was a guarantee; that the plaintiff was promised a minimum of $5,000 a year, then whether or not he effected any sales, he would be entitled to $2,603.30. If you find that he is entitled to his ten per cent commission, then he would be entitled to commissions of $4,190, less what he received. You see, he received more than the $60 a week. That is what makes it a little confusing. For part of this period he received $75 a week. So the $15 a week that he was receiving would come off the commissions he is entitled to. So that he is not entitled to $4,190; he is entitled to that less these $15 payments that were given to him. And that is how you get at the amount of $3,395. So you have to consider both those things in coming to your conclusion, if you find that the plaintiff is entitled to recover anything.
"I think I might repeat that for you, so that you will not be confused. If you find that the plaintiff is entitled to
the minimum pay of $5,000, then according to the figures that have been submitted (and I now would suggest that if I am wrong in this I will give counsel the privilege of interrupting me), then he would be entitled to a verdict of $2,603.30. If he is entitled to the ten per cent commission, he would be entitled to $3,395 or such part of the $3,395 as ...