Johnson v. Hammock

Panneool, Judge. Plaintiff brought an action seeking recovery of commissions allegedly due for sale of cemetery lots sold by him as an employee of defendant, a sales agent for a cemetery company, attaching to the petition a list .of the sales contracts, including the date, the person and the amount of commissions due. On motion for summary judgment by both plaintiff and defendant, the plaintiff testified that he would not be entitled to any commissions .on contracts which were canceled, that he knew some of those listed had been canceled but did not know how many, and that the only way to find out would be to check the records of the cemetery company, that he was not to' be paid if the contracts were canceled, and that those that were canceled would reduce the amount due substantially and when pressed for an answer as to what was actually owed, testified around $800 or' $900, stating at the same time “that is just my guess, I don’t know,” and that the only sure way of knowing would be to check the records of the cemetery company. This testimony, was not sufficient to authorize a summary judgment for. the plaintiff in any [332] amount. The trial court, therefore, erred in entering a judgment for $1,112.50 principal plus interest. Argued January 7, 1969 Decided March 7, 1969. Peek, Whaley, Blackburn & Haldi, Glenville Haldi, for appellant. Cotton, Katz & White, J. Timothy White, Ben J. Camp, for appellees. Judgment reversed. Felton, C. J., and Quillian, J., concur.