# Parenti v. Wytmar & Co. > Appellate Court of Illinois · June 27, 1977 · 49 Ill. App. 3d 860 URL: https://www.frixlaw.com/law-library/cases/9530993 ## Case - **Full name:** TERRY D. PARENTI Et Al., Plaintiffs-Appellees and Cross-Appellants, v. WYTMAR & COMPANY, INC., Defendant-Appellant and Cross-Appellee - **Court:** Appellate Court of Illinois - **Decided:** June 27, 1977 - **Citations:** 49 Ill. App. 3d 860; 364 N.E.2d 909 - **Precedential status:** Published - **Opinion:** Dissent by Simon - **Judges:** Simon - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Limited by Norton Sarnoff and Carl Fletcher, and v. American Home Products Corporation, Defendant-Appellant-Appellee, 798 F.2d 1075 (1986). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9530993 ## Opinion text SUPPLEMENTAL OPINION ON DENIAL OF REHEARING Mr. JUSTICE SIMON delivered the opinion of the court: Plaintiff Jacobs has petitioned for rehearing of this court’s determination that his employment agreement provided for computing his compensation by adding his commissions for commercial searches to his compensation for OEO searches and deducting his annual base salary from that sum. The circuit court decided in favor of Jacobs, holding that under his employment arrangement his compensation for OEO searches was not to be included in the amount against which his base salary was credited. Jacobs contends that the circuit court’s conclusion is supported by the manifest weight of the evidence, and should not be disturbed even if there is evidence justifying an opposite result. Because of the testimony of Jacobs’ witness, Phillip Conway, as well as Jacobs’ own testimony and a tabulation prepared by Jacobs toward the end of 1970 which was received in evidence, we disagree with the suggestion that the circuit court’s conclusion is supported by the manifest weight of the evidence. This testimony and the tabulation lead to the opposite conclusion. On re-cross-examination, Jacobs’ coworker, Conway, testified: “Q. Mr. Conway, isn’t it correct that in 1969, the manner by which your bonus was computed was as follows: your total commissions on commercial work was added to adjustments consisting of O.E.O. bonus. Those two figures were added together, and then from that figure was subtracted your base salary, is that correct? A. Yes. Q. * # * Your base salary was what, *19,000? A. I think it was at that time. Q. Was it your understanding that if your commercial searches had been entitling you to *6,000, and your O.E.O. searches amounted to *6,000, adding up to *12,000, that you would get anything more than your *19,000 at the end of the year? A. No, I don’t think so.” Jacobs contends that even if this testimony, as the opinion states, casts serious doubt on Jacobs’ contention that his OEO compensation was to be added to his base salary, under the manifest weight test such doubt does not warrant reversal. Conway’s testimony does more than raise serious doubt. It directly contradicts Jacobs’ contention, and Jacobs is, of course, bound by the testimony of his own witness. Conway’s clear and definite response to the questions posed in the final testimony he gave cannot be interpreted as Jacobs urges, as merely raising a conflict with other portions of Conway’s testimony. His testimony on re-cross-examination clarified his previous testimony and established the terms of the arrangement under which he and Jacobs were employed. The tabulation prepared by Jacobs and referred to in the opinion demonstrates that Jacobs understood his compensation was to be computed in precisely the manner Conway described in the testimony quoted above. The second page of the tabulation reads: Total Commissions Earned * 8,946.34 Adjustments: OEO T Sc T/A payment *16,630.00 Total Earned *25,576.25 Less: Base salary paid during 1970 *16,666.67 Bonus Due * 8,909.58 This computation was the subject of the following testimony by Jacobs on cross-examination: “Q. 6 # e On the basis of your understanding with Mr. Wytmar that your commissions for OEO searches would be in addition to your base salary, I will ask you now why, in the computation that you prepared, you subtracted your base salary from the total of your commercial commissions and your OEO commissions? A. Mr. Weaver, I don’t recall. Q. * * * How much do you now claim is owing to you for work performed under the OEO contract? A. Something in excess of *23,000. I think it’s *23,400. Q. * * ” I ask you not what has happened since the time you prepared that document which shows a bonus due of *8,909.85, and today’s date, at which time you claim *23,000 is owing to you? What has happened between the date you prepared that document and today’s date to increase that figure by something? A. There was *36,000 left in the contract to be allocated to the staff after settlement with Mr. Conway, and that has changed my figure. Q. The settlement to Mr. Conway? A. That’s correct.” The tabulation set forth above and Jacobs’ testimony relating to it contradict other portions of this testimony in which Jacobs stated he understood Mr. Wytmar was telling him his base salary would not be set off against his OEO earnings. They demonstrate Jacobs’ understanding during the period of his employment. His true understanding is also shown by Jacobs’ inability to explain satisfactorily the inconsistency between the computation the trial court approved and the tabulation he prepared, which includes OEO payments in the amount from which the base salary is deducted. Jacobs, in his petition for rehearing, also directs this court’s attention to another tabulation he prepared regarding the earnings he was to receive pursuant to the OEO contract. That tabulation was concerned only with the compensation to be paid for OEO searches; it does not prove that such earnings were not to be included in the amount against which his base salary was to be offset. The circuit court’s decision which offset the base salary against an amount which did not include compensation for OEO searches is against the manifest weight of the evidence, and the petition for rehearing is, therefore, denied. GOLDBERG, P. J., and O’CONNOR, J., concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9530993. Public record. Not legal advice.