Before EVANS, MAJOR, and KERNER, Circuit Judges.
Plaintiff, formerly a salesman employed by defendant, recovered a $25,284.43 judgment for commissions he allegedly earned in the sale of building materials. The trial was by the court, and the judgment is supported by specific and detailed findings and conclusions.
The controversy is largely over two issues. Was plaintiff the procuring cause of the sales on which he seeks commissions? Is he estopped to claim such commissions because of endorsements on his monthly checks?
Alder entered the employ of defendant in July, 1938,*fn1 and the employment terminated in October, 1943. He had been the president of another building material company before entering defendant's employ.
The commissions involved cover the period subsequent to June 1, 1942. At that time plaintiff was offered an annual salary of $10,000, in lieu of commissions. He refused this offer. The president of defendant then stated plaintiff would receive no further commissions on Portland cement.
From February, 1942 to September, 1943, plaintiff's pay checks bore this printed endorsement:
"The endorsement of this check by payee guarantees acceptance of it in full settlement of the account as stated in voucher bearing corresponding check number."
Defendant argues, - Plaintiff was not the procuring cause of the sales upon which he claims commissions.*fn2
A consideration of the evidence bearing on these two issues provokes several other questions factual in nature, one of which is the action of the defendant's sales menager and defendant's failure to call him as a witness, when his testimony would have been clarifying and important.
At the close of the trial the judge announced his opinion. He believed plaintiff's testimony in its entirety.He did not believe defendant's witness S. to be entirely reliable. He found the principal issues to be whether or not plaintiff was the "procuring cause" of the orders, and second, whether there had been an accord and satisfaction.
On the question of "procuring cause" he concluded:
"No matter what thought there may be in the mind of the court otherwise, the plain record is that the parties interpreted their own contract, and that the defendant up until the first of June, 1942, admitted that the plaintiff was the procuring cause of all this business; and under that admission they could not change the relationship of the parties afterwards by any unilateral statement * * * by the president of the company simply announcing, 'We are going to cut you off; we will pay you no more commissions,' because he would be destroying a property right ...