Golden

The plaintiff sought to recover under the terms of an oral contract of employment. His version of the contract and that of the defendant are, plaintiff concedes, in conflict. But, he insists, the judgment that he take nothing must be reversed because a check given the plaintiff, during the life of the contract, establishes the intention of the parties as a matter of law! We are affirming the judgment.

Both parties agree that the plaintiff was employed to serve in defendant’s sales organization, with a salary, at first of $600, later, of $800 per month, and that these monthly payments have all been made. Plaintiff alleged that in addition he was to receive 1 per cent of the gross sales price of real property and securities sold by the defendant. As a witness he testified that at first the commission was to be one-half of 1 per cent, but this was changed in September of 1955 to 1 per cent of all sales, no minimum.

In his opening brief, plaintiff states this: “The one per cent arrangement is vehemently denied by the defendant.” The vehemence of the denial does not appear from the cold record, but its positiveness does. Defendant’s president, who represented it in arriving at the…