Horne v. KENOSHA LINCOLN-MERCURY, INC.

61 N.W.2d 893, 265 Wis. 496, 1953 Wisc. LEXIS 395

• Court: Wisconsin Supreme Court
• Decided: December 30, 1953
• Status: Published

Opinions

Martin-, J.

The first question presented is whether there is sufficient evidence to support the jury’s finding that a contract existed between the parties whereby plaintiff was to receive a three per cent commission on the gross parts sales.

As pointed out by the learned trial court, the testimony is in sharp conflict and the jury had the right to believe either party. Plaintiff testified that such an agreement had been reached on the day he was hired. His testimony that by its terms three per cent on gross parts sales was payable annually was corroborated by Wassick. The testimony of Mr. Clausen, secretary-treasurer of the defendant company, is somewhat inconsistent: He denied that any contract for commissions had ever existed, but he admitted that a commission would have been payable had a certain quota been met. The jury believed the testimony of the plaintiff, which it was entitled to do, and its answer to the question submitted in the special verdict must be sustained.

Defendant also contends on this appeal that if there was any agreement between the parties, it was void under the statute of frauds, sec. 241.02, Stats.:

“In the following case every agreement shall be void unless such agreement or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party charged therewith:

“(1) Every agreement that by its terms is not to be performed within one year from the making thereof.”

This contention was raised for the first time on motions after verdict, and answered by the trial court. It is argued that according to plaintiff’s testimony commissions were to be paid annually, and that therefore, under the rule of Brown v. Oneida Knitting Mills (1938), 226 Wis. 662, 277 N. W. 653, and similar cases, the commissions were to be paid at the end of one year from plaintiff’s first day of employment.

Plaintiff’s employment began September 19, 1949, and the defendant’s fiscal year ended in August, 1950. After August, 1950, when plaintiff demanded his commissions, Clausen put him off, not for the reason that the “annual” payment was not due, but because the auditors had not finished with the books. On various occasions thereafter when plaintiff demanded commissions, Clausen made other excuses for not paying him, but on no such occasion did he deny that commissions were due.

Webster defines “annual” as “occurring once each year; yearly.” In applying this ordinary and approved meaning of the word to the evidence presented in the record, the trial court had the right to conclude that commissions were payable at the end of the fiscal year, which was within one year from the date when the parties entered into their agreement.

By the Court. — Judgment affirmed.