Strayer v. Gimbel Bros.

Siebecker, J. It appears that plaintiff on January 14, 1916, made a written application to Gimbel Brothers for employment as piano salesman, and on the following day the written memorandum of employment set forth -in the foregoing statement was signed by him as a result of negotiations he had with B. J. Forman, the superintendent of defendant’s store. This memorandum is treated as the contract between the plaintiff and defendant, and plaintiff bases his right to a recovery on it in this' action. The civil court held this writing ambiguous and received parol evidence to explain its terms. Akers was a friend of plaintiff, who induced him to make the application to defendant for employ 78 ment as a piano salesman. The conversation with Akers which was received in evidence took place several days before plaintiff negotiated with B. J. Forman as defendant’s superintendent for the position of piano salesman. It is clear that Forman was the authorized represéntative of defendant to malee this contract with plaintiff and that on January 15, 1916, he had negotiations with him which resulted in the written contract. It also appears that Akers did not participate in the negotiations between plaintiff and Forman. Under these facts and circumstances the holding of the circuit court that any conversation plaintiff may have had with Akers concerning the terms of his employment by defendant several days before plaintiff negotiated with Forman was incompetent and that its admission in evidence to explain, any ambiguity in the written contract constitutes an error tvhich requires that the verdict be set aside, is correct. These conversations so admitted were in effect an interpretation of the written contract, as plaintiff claims, and negatived the interpretation asserted by the defendant. The ruling in Hammond v. Capital City M. F. Ins. Co. 151 Wis. 62, 138 N. W. 92, and Klueter v. Joseph Scklitz B. Co. 143 Wis. 347, 128 N. W. 43, does not justify the admission of this prior conversation with Akers as proper and competent evidence to explain the terms of the written contract made by plaintiff with Forman. The defendant contends that the court erred in not awarding judgment dismissing plaintiff’s complaint upon the grounds that it is undisputed in this case that plaintiff throughout his employment accepted monthly statements from defendant showing that under the written contract he was entitled to a commission of eight per cent, on net sales. It is undisputed that the monthly statements showing plaintiff’s sales and what credits for repossessions were to be charged against his sales were received and accepted by him without objection. This long course of dealing between the parties is of controlling weight in determining the correct 79 interpretation of the written agreement and must be accepted by the court as its correct interpretation by the parties. Such conduct is binding on plaintiff under the facts and circumstances of the case. This construction of the contract is also supported by the testimony of Forman to the effect that in the negotiations between himself and plaintiff resulting in the written memorandum of the contract on January 15, 1916, it was understood that the eight per cent, commission was to be allowed him on his net sales. This conversation the plaintiff does not contradict, and it harmonizes with his conduct in accepting monthly statements of his account on the eight per cent, net basis. These facts are verities in the case and entitled the defendant to a judgment dismissing the plaintiff’s complaint. By the Court. — The order appealed from is reversed, and the cause remanded to the circuit court with direction to enter judgment dismissing plaintiff’s complaint upon the merits.