dissenting:
Plaintiff, about 70 years of age, had been employed by the defendant for over 30 years. Upon the trial she was the sole witness in her behalf. Defendant operates a retail women’s clothing store at the corner of Michigan Avenue and Randolph Street in Chicago. She started working there in 1927. In 1941 she became the buyer for the coat and suit department. Her duties required her to make “buying trips to New York, taking care of merchandise, seeing that it was properly shown, sold and advertised and doing considerable selling.” On July 15,1957, on returning from a buying trip to New York for fall merchandise, and without any prior notice or complaint about her performance, she was called to the office of Thomas Considine, Jr., the then president of defendant, and offered a job in a reduced capacity as a saleslady at a salary of $75 per week. At that time she was receiving a salary of $666.66 per month. She had also been receiving a bonus, the amount of the last one, received on February 14, 1956, being $3,500. Plaintiff testified that the first conversation about salary and bonus was with Thomas Considine, Jr., in 1941. She said he told her that “your percentage will be 2½% over $150,000 and your salary” which she thought was “about $475 a month.” She stated that every year after that until February, 1956, she had conversations with Considine “about salary around February 10th” and that her bonuses were computed on the basis of the fiscal year running from February 1st to January 31st.
She testified that on February 14, 1956, she had a conversation with Thomas Considine, Jr., at the store when he handed plaintiff her bonus check for the preceding fiscal year of 1955. She said that at this time Considine told her that her bonus arrangement would be changed from 2½% over $150,000 to 1½% of the net sales over $200,000. She inquired whether she would receive a raise in salary, to which he answered that the salary would be the same the coming year. The bonus check was in an envelope which she placed in a drawer without looking at the check. She told Mr. Considine she “had better make a note of that” and pulled out the envelope and made the following penciled notation on it: “2/14/56 After 200½ perce.” Plaintiff testified that she did not receive any bonus after the fiscal year 1955, given her on February 14, 1956, and that she did not receive any salary subsequent to her discharge on July 15,1957.
She testified that in February, 1957, after the close of the 1956 fiscal year, she failed to receive her bonus based on the net sales of her department for the preceding year; that after making several requests of the comptroller, Mr. Wangnett, (deceased at the time of the trial) she was advised that no bonus checks had been issued for that year; that several months after January 31, 1957, she spoke to Vincent Considine, vice president of defendant, and that he told her there would be no bonuses for 1956 because the firm had failed to make any money. She responded that her bonus was not based on profits.
Thomas Considine, Jr., testifying for the defendant, denied that he presented the plaintiff with a bonus check for 1955, that he had a conversation with her on February 14, 1956 or that he promised her a bonus or commission based upon a percentage of the sales of her department. Vincent Considine testified that he handled defendant’s fiscal matters; that in 1955 he became general manager and assumed the duties of his brother, Thomas Considine, Jr., who had become seriously ill; and that in 1955 and 1956 he presented plaintiff with a bonus check for the prior fiscal year. He testified further that he did not in 1955 or 1956 discuss with plaintiff the terms of her employment with the defendant; that bonuses had been paid to her for the fiscal years 1948 through 1955; and that the payment of and the amount of these bonuses was determined after the fact of performance and in the light of the defendant’s over-all profit situation. No bonuses were paid for 1956 and 1957 to anyone in the firm as there were no profits for those years. The profits and losses of the defendant for the years 1947 through 1957 and the aggregate bonus payments made to all employees for those years were established through the testimony of Ralph Gerhardt, an auditor. His testimony also established the yearly bonus payments to plaintiff for 1947 through 1955. The parties stipulated as to the sales of the department over which plaintiff had control for these years.
Defendant maintains that the judgment is against the manifest weight of the evidence. Plaintiff, calling attention to the rule that this court will not substitute its judgment for that of the jury where the facts leave room for different conclusions to be drawn by reasonable men, insists that she established the existence of an oral contract of employment for the fiscal year 1956, and that the continuation of her employment into the fiscal year 1957 without a new agreement renewed the term of employment at the same rate of compensation. Plaintiff’s case rests solely on her testimony that an oral agreement was entered into on February 14, 1956, between herself and the defendant through Thomas Considine, Jr. At that time he was president. At the time of the trial he was not employed by defendant. On the trial defendant testified that the alleged change from 2½% to 1½% occurred in 1956. In her pretrial discovery deposition she testified that the alleged change, occurred in 1954. Her original statement of claim alleged that the percentage of her supposed bonus was 1½% over $200,000 in 1954. It was not until her direct testimony at the trial that she said the 1½% figure was first arrived at in 1956.
On direct examination she testified that during the alleged contract discussion with Thomas Considine, Jr. she asked him whether in view of the change in bonus percentage she would receive a greater salary and that he told her the salary would remain the same. In her pretrial deposition she said that there was no salary discussion during this conversation. This testimony is consistent with her testimony in the pretrial deposition that the bonus or rate of commission change took place in 1954. She testified further that Thomas Considine, Jr. asked her during the course of the conversation of February 14, 1956, to look into the envelope in which he presented her a check for the 1955 bonus so that she might see the “change” in the supposed percentage. As the bonus check presented to her was for 1955, and according to her pretrial testimony, the “change” occurred in 1954, it is difficult to understand what change could have possibly been involved in 1956. It is also difficult to understand how Mr. Considine could reasonably have attributed to him a statement regarding a change in the 1956 check as it is undisputed that this was the third of a series of three bonus checks for each of the three previous years in the same amount. It is important to note that the logic for making the notation on the envelope was that the change was either effected in the future percentage or that a change was effected in her relationship with the company. She further testified that at the time of the alleged conversation Thomas Considine, Jr. told her that he “hoped” the next year’s bonus would be better. In her deposition she testified that he “apologized” for the size of the bonus given for the year 1955. The statement that he apologized is more consistent with -defendant’s position that the bonuses awarded -were based on the over-all profit picture of the company than as plaintiff claims, upon a fixed percentage of sales in her department. The language of apology indicates discretion rather than obligation arising from a contract.
Plaintiff’s allegations as to the creation of a contract of employment with the defendant on February 14, 1956, and the terms of such contract are denied by the testimony of defendant’s officers. Thomas Considine, Jr. testified that he did not present a bonus check to the plaintiff on February 14, 1956, or for the prior year, and that he did not discuss with her the terms of her employment during the year 1956. Vincent Considine, a member of the Illinois bar corroborated this testimony. He stated that he presented the bonus check to her in 1956 and that no terms of employment were discussed with her. His explanation of the bonus policy of defendant as being dependent upon profits is corroborated by the undisputed testimony that no bonuses were paid for the fiscal year 1956.
The financial data of the corporation pertinent to the case included the profit and loss position of the defendant, the gross business done by it, the aggregate bonuses paid to its employees, the bonuses paid to plaintiff and the sales of the department under plaintiff’s control year by year. These exhibits served to corroborate the evidence of the defendant, to render improbable the testimony of the plaintiff and to support the theory of the defendant. This documentary evidence refuted plaintiff’s allegations that defendant’s practice was to pay her a bonus or commission computed in accordance with a predetermined agreement to pay her a bonus equal to a fixed percentage of the sales of her department. These records substantiate the contention of the defendant that bonuses were paid to employees after the fact of performance upon a discretionary basis related to profit. These bonuses were, both for the plaintiff and other employees, substantial in highly profitable years, moderate in less profitable years and nonexistent in years when the corporation experienced a loss.
A variation in practice from the contractual requirements asserted by plaintiff whereby she was to be paid a bonus check equal to 2½% of sales in her department over $150,000 was not only wide but continual. Thus plaintiff finds herself in the anomalous position of having relied upon the receipt of bonuses to corroborate her position, while any reasonable analysis of this practice achieves the contrary effect. Her failure to make any claim in this suit, or at any other time, for any amounts due for years prior to 1956 further demonstrates the accuracy of defendant’s contention as to its bonus policy. Plaintiff testified that she was given a yearly statement showing the net sales of her department. For the fiscal year 1947 the bonus paid her was $9,500. According to her claim of an agreement to pay her a bonus of 2½% on net sales over $150,000, she should have received $12,132.63. On the same basis for the fiscal years since 1947, including 1955, the amount of bonus she received each year was considerably less than the amount she would be entitled to receive under the contractual arrangement asserted by her.
Vincent Considine, in charge of the fiscal affairs of the defendant, testified that profitable operation of the corporation was a prerequisite to the payment of and the principal determinant of the size of the bonuses. His testimony is reinforced by the undisputed evidence of the corporate practice and is corroborated by plaintiff’s attribution to him of a like spontaneous statement prior to any contemplation of a lawsuit. Plaintiff failed to establish a relationship or identity between her mode of compensation prior to the alleged express agreement relied upon and that provided by the alleged agreement. Her position at all times has been that this was a continuation of an old type of employment contract only different as to its rate. If plaintiff’s testimony is taken at face value it would appear that her employer failed in regard to a bonus to live up to its contractual commitments to her for a decade, and yet she did not upon the presentation of a bonus check to her on February 14, 1956, even look at it. It is significant to note that when on July 15, 1957, Vincent Considine and Thomas Considine, Jr. advised her of the termination of her status as a buyer, she failed to assert any right to continued employment or to past amounts due her. In Peaslee v. Glass, 61 Ill 94, in reversing judgment on a verdict for the plaintiff, the court said (95): “We must set aside one resting only upon the evidence of the plaintiff when it is contradicted not only by the defendant but also by another witness, and there are no elements of probability to turn the scale.” See also Selamakos v. Victory Ice & Ice Cream Co., 246 Ill App 178; Warszawa v. White Eagle Brewing Co., 299 Ill App 509, 20 NE2d 343; Huchette v. Williamson County Coal Co., 188 Ill App 321.
Plaintiff points out that on cross-examination of Thomas Considine, Jr. it was elicited notwithstanding defendant’s contention that it had never paid bonuses based on net sales to buyers, that there was an agreement made between Rudolph Schlam in 1947 whereby defendant agreed to pay Schlam, the buyer for the fur department, a salary plus a bonus based on 2½% of net sales in excess of $400,000. When the hiring of Schlam was brought to Considine’s attention by reference to a letter the witness’s recollection was refreshed and he then explained the matter. It is significant that plaintiff, an employee for thirty years, failed to produce a witness in refutation of defendant’s position that a buyer for the firm had received a bonus on the basis of the net sales of a department.
The judgment rests solely upon the testimony of plaintiff. There are serious contradictions and inconsistencies in her testimony. Her testimony in regard to pertinent aspects of the alleged conversation of February 14, 1956, has been impeached. There are no corroborative facts or circumstances supporting her allegations as to the creation or existence of the alleged contract. I am convinced that the judgment is contrary to the manifest weight of the evidence. In Donelson v. East St. Louis Ry. Co., 235 Ill 625, 85 NE 914, the court said (628):
“The constitution, which provides that the right of trial by jury as previously enjoyed shall remain inviolate, does not make the jury the final judges of the weight of evidence, and if a verdict is manifestly against the weight of the evidence it is the duty of the trial judge to set it aside and grant a new trial, and a failure to do so is error, for which a judgment must be reversed. (Chicago, Burlington and Quincy Railroad Co. v. Gregory, 58 Ill 272; Henry v. Eddy, 34 id. 508; Lincoln v. Stowell, 62 id. 84.) In Belden v. Innis, 84 Ill 78, the court said that in all cases where a verdict is manifestly and palpably against the weight of the evidence the judge in the trial court should promptly take the responsibility of setting aside the verdict, and a failure to do so is error. If a verdict is manifestly against the weight of the evidence, it is not necessary that it should further appear that it was not the result of the impartial and honest judgment of the jury, nor that it resulted from prejudice, passion or some improper motive or condition. To permit a verdict which is clearly and manifestly against the weight of the evidence to stand, upon the supposition that the jury were impartial and honest, would be as unjust and injurious to the defeated party as though it proceeded from passion, prejudice or some improper motive.”
The part of given instruction No. 2 tendered by the plaintiff that if “defendant has not proved by the greater weight of the evidence that the parties agreed to any changes in the agreement of employment” tends to confuse the jury on the subject of the burden of proof. Plaintiff’s given instruction No. 4 also has a tendency to confuse and should have been refused. The court erred in receiving in evidence plaintiff’s exhibit No. 1, the memorandum made on the envelope by plaintiff on February 14, 1956, at the time of her alleged conversation with Thomas Considine, Jr. Plaintiff in her testimony indicated that she had a complete memory of the occurrence supposedly recorded. A memorandum is not admissible as independent evidence, though proven by the person who made it, but only for the purpose of refreshing the recollection of the witness. Western Union Cold Storage Co. v. Warner, 78 Ill App 577, 583; Lindroth v. Walgreen Co., 338 Ill App 364, 87 NE2d 307; D’Oranzo v. Lacny, 330 Ill App 333, 71 NE2d 104; (Abst.) “Where a witness has a distinct recollection of the circumstances surrounding the transaction as to which he testifies, written memoranda of the facts made by him at the time of the occurrence should not be admitted * * * .” 32 CJS Evidence, Sec 696, p 588. The memorandum was inadmissible under either of the two doctrines known as “present recollection refreshed” or “past recollection recorded.” Koch v. Pearson, 219 Ill App 468, 472.
The judgment should be reversed and the cause remanded with directions to proceed in a manner consistent with these views.