Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
An examination of the pleadings in this action reveals a complaint by the plaintiff alleging that:
"1. In April or May, 1953, plaintiff and defendant agreed that defendant would employ plaintiff as manager of its electrical supply business at 289 Franklin Avenue, Wyckoff, New Jersey, and that plaintiff would be compensated for his services at a net salary after the usual deductions, of $95.00 a week, plus 2 per cent of all the gross sales of said business, to be paid to him at the end of each year.
2. In accordance with said agreement plaintiff served as manager of said business for defendant from April or May, 1953 until the month of December, 1954, and was entitled to receive the aforesaid salary and commission during said period of employment.
3. Defendant failed and refused to pay plaintiff the commission on the gross sales in accordance with their agreement although requested to do so."
In answer thereto the defendant denied in a general manner each and every allegation of the plaintiff's complaint. At the pretrial conference no endeavor was exerted to amend or supplement the pleadings and the defendant's defensive position was summarized as follows:
"3. Deft's contention that there was an oral contract of hiring at a stipulated weekly salary of $102.00. This employment contract was oral and continued in full force and effect without any objection whatsoever from the plf from the week ending May 1, 1953 to Dec. 10, 1954. No other agreement of any sort were made between plf and deft. Plf on his own terminated his contract of employment by serving two weeks notice of such termination on deft."
Such was the frame of the controversial issue, obviously one of fact, as the action came to trial before a jury in the Bergen County Court. At the inception of the trial it was stipulated by counsel for the parties that the amount of the claimed commissions together with the accrued interest was slightly in excess of $2,000, and it was agreed that "either the plaintiff is entitled to $2,000 or nothing."
The trial judge presented to the jury for decision the single factual issue created by the conflicting and divergent evidence relative to whether the oral agreement embodied the provision for the payment to the plaintiff of the 2% commission. No objection was addressed to the charge of the court on behalf of either party.
There was adequate evidence presented at the trial to justify the jurors, upon their determination of its credibility, in resolving that an oral contract of employment embracing the terms as alleged by the plaintiff had in fact been made. A verdict for the plaintiff in the stipulated amount eventuated and the defendant here appeals from the conformable final judgment.
The ground of appeal here asserted by counsel for the appellant arose in a somewhat peculiar fashion. It was not until the termination of the testimony affirmatively introduced on behalf of the plaintiff that counsel for the ...