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Hennecke v. Warp

OPINION FILED JUNE 30, 1952

CHARLES P. HENNECKE, APPELLEE,

v.

HAROLD WARP AND FLEX-O-GLASS, INC., APPELLANTS.



Appeal by defendants from the Superior Court of Cook county; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1951. Affirmed. Opinion filed June 30, 1952. Released for publication July 15, 1952.

MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.

Defendants appeal from a decree of the superior court of Cook county directing an accounting for commissions allegedly due plaintiff under a contract of employment as a salesman. The cause was referred to a master, who found that a contract of employment was entered into with defendant, to pay 1% commission upon sales (certain territory excepted), but that an accord and satisfaction existed between the parties, and therefore plaintiff could not recover, and recommended that the complaint be dismissed for want of equity.

Upon exceptions filed to the master's report and heard by the chancellor, the court entered a decree confirming in part the master's report as to the existence of the contract of employment and the obligation to pay a commission of 1%, but reversing the master as to the finding of an accord and satisfaction.

The contract of employment was originally made with defendant Warp, whose business was subsequently incorporated as Flex-O-Glass, and for the purpose of the hearing it was stipulated that the defendants could be considered as one in determining the liability. The evidence discloses that in the computation of the amount due plaintiff for commissions, the sales occurring in the territory west of the Rockies and the sales to Gamble and Apfel were to be excluded. Whether the acceptance by plaintiff of the final check and the circumstances under which it was accepted constitutes accord and satisfaction, defendant contends, depends upon whether defendant's employees, Delbert L. Christensen, defendant's office manager, and George Feldman, assistant secretary, had either express or implied authority to bind defendant with plaintiff's claim of conditional delivery and acceptance of said check.

The findings in the instant decree are:

"A. An agreement was made between plaintiff and Warp in February, 1941 whereby plaintiff's remuneration was fixed at a guarantee of $1500 per annum plus 1% of the gross sales over $250,000, excluding Gamble and Coast to Coast account and all business West of the Rockies.

"B. The Emergency Control Act of 1942 (Salary Stabilization) did not apply to plaintiff's compensation.

"C. Plaintiff relied on false representations of Warp as to the effect of salary stabilization in accepting and cashing checks during its existence.

"D. Plaintiff never talked to Warp about the check of July 23, 1947.

"E. The Apfel Account should be excluded in computing plaintiff's compensation.

"F. Feldman had implied or express authority to waive any limitation on the check of July 23, 1947 and Feldman and Christensen were proper persons to notify as to objections to the check and the corporation received proper notice through said persons."

The decree ordered and directed:

"1. Hennecke is entitled to, and shall have, an accounting from defendants, Harold Warp and Flex-O-Glass, Inc. and shall recover $1500 per year plus 1% of all sales in excess of $250,000 per year for each year of employment commencing January 1, 1941 and ending May 31, 1947, excluding from gross sales $250,000 plus, Gambles, Coast to Coast, Apfel and accounts West of the Rockies, defendants to be entitled to credit, against sums found due plaintiff, for all compensation heretofore paid.

"2. Accounting shall be based on contract as found and compensation shall not be limited by ...


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