Baxter

This is an appeal from a judg ment in favor of defendants, hereinafter referred to as Sunbeam, and against plaintiff-appellant based upon a fourth amended complaint for claimed commissions due and for an accounting. Under the findings and judgment no commissions or any moneys were found due by Sunbeam to plaintiff and an accounting was denied.

Sunbeam, a manufacturer of fluorescent lighting fixtures, employed plaintiff in February, 1947, as its manufacturer’s representative in two areas, the San Francisco territory, and the Northwest territory. Plaintiff’s representation was terminated April 15, 1953, as to the San Francisco territory and in July, 1953, as to all other areas.

It is plaintiff’s contention that, by oral agreement at the time of his employment, he was to receive sales commissions of 5 per cent on all sales made in his territory whether by him or not. Sunbeam contends that the terms of the commission agreement were varied by mutual consent from time to time during the term of employment depending upon the type and sales price of merchandise. The agreed percentages, though generally 5 per cent, varied from 2, 2%, 3, 3%, and 4 per cent. Commission statements were…