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Hekker v. Sabre Construction Co.

May 24, 1973

HEKKER, RESPONDENT,
v.
SABRE CONSTRUCTION COMPANY, APPELLANT



Appeal from Circuit Court, Washington County. Hollie Pihl, Judge.

Douglas G. Beckman, Portland, argued the cause for appellant. With him on the briefs were Black, Kendall, Tremaine, Boothe & Higgins.

Stephen B. Herrell, Portland, argued the cause for respondent. With him on the brief were McMenamin, Jones, Joseph & Lang.

In Banc. McAllister, J.

Mcallister

This is an action at law brought by the plaintiff Hekker to recover commissions earned as a salesman for the defendant Sabre Construction Company. The case was tried sans jury and the trial court found for plaintiff. Defendant appeals and plaintiff cross appeals from the denial of his right to attorney fees and a penalty.

This is one of a disconcerting number of cases in which the appellant, in a case tried by the court without a jury, attempts to obtain a retrial of the facts by broadly criticizing the judgment instead of alleging precise assignments of error as required by

our rules. We decline to be taken in by this gambit and will not review de novo actions at law, whether tried by a jury or by the court.

The controlling issue is the construction of a provision in the contract between plaintiff and defendant. There is no dispute about the facts, which we will briefly summarize. Plaintiff was employed by defendant from June 3, 1968, until January 30, 1970, first under an oral agreement, and then under two successive written agreements, all of which provided that plaintiff was to be compensated only by a commission of the gross sales price of each sale. Plaintiff was entitled at the end of each accounting period to the commissions earned less his draw and any expenses paid on his behalf by the company.

The trial court found that plaintiff's employment covered three accounting periods and that for period No. 1 defendant owed plaintiff net commissions of $1,098 and for period No. 2 $1,542. The court gave plaintiff judgment for these two amounts plus interest.

It appears that during accounting period No. 3, from October 1, 1969, to January 31, 1970, plaintiff's draw and expenses exceeded his commissions and defendant contends that because this deficit in period No. 3 exceeded the net commissions earned in the first two accounting periods, it did not owe plaintiff anything. The answer to this contention depends on the construction of the following provision of the contract:

"Should the employee's commission account show a deficit balance, he will not be required to repay the company the amount of the deficit."

According to defendant this provision means that although plaintiff need not repay any deficit, the defendant

could carry forward or back any deficit and offset it against any net commissions earned in ...


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