Spindler

The plaintiff commenced an action against the defendant to recover commissions alleged to have been earned while acting as a salesman. The defendant answered and a trial was had before the court sitting without a jury. The trial court made findings in favor of, and ordered judgment for, the plaintiff. From that judgment the defendant has appealed.

Before taking up the points made by the appellant it should be noted that this is the second appeal. (See Spindler v. Wittemann Co., 54 Cal. App. 207 [ 201 Pac. 604 ].) An examination of the decision in that ease discloses that the record as made on the first appeal shows that a number of payments were made by the defendant to the plaintiff, but the record did not disclose whether those payments or which ones were made to the plaintiff on the account on which the plaintiff sued in this action.

When the case "went back for the second trial other evidence was introduced and the trial court made findings slightly different from the findings made on the first trial.

The first point made by the appellant is that the plaintiff is bound by the admission in the complaint to the effect that “plaintiff agreed with the defendant to a deduction…