Remme

Herzog Builders Supply Company, Inc., a corporation, Harry H. Herzog and Zella B. Herzog appeal from a judgment in favor of Palmer Bemme in the amount of $7,348.73 plus interest from June 1,1959.

The Herzogs operated a builder’s supply business consisting of wholesale and retail lumber supplies. Bemme was em ployed by the Herzogs in 1955 as the manager of the business. It was agreed orally that his compensation was to be one-third of the net profits of the business. In 1956 the Herzogs incorporated their business, and in April 1957 the corporation and Eemme entered into a written contract of employment. This contract read, in part, as follows:

On September 30, 1958, Remme terminated his employment. He then brought this action for an accounting and to recover the percentage of profits due him.

Appellants first contend that it was improper to grant an accounting because Remme did not produce sufficient evidence to show that he was entitled thereto. Neither the pleadings nor the pretrial conference order show that any objection was made to the court’s exercise of its equity jurisdiction. In 19 American Jurisprudence, Equity, section 107, page 114, it is stated that unless an…