{
  "id": 2832831,
  "name": "Wendell LITTERAL, Plaintiff-Appellant, v. The SINGER BUSINESS MACHINES COMPANY, a Division of the Singer Company, Inc., and John W. Tinkham, Defendants-Appellees",
  "name_abbreviation": "Litteral v. Singer Business Machines Co.",
  "decision_date": "1975-03-28",
  "docket_number": "No. 10031",
  "first_page": "365",
  "last_page": "368",
  "citations": [
    {
      "type": "official",
      "cite": "87 N.M. 365"
    },
    {
      "type": "parallel",
      "cite": "533 P.2d 754"
    }
  ],
  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T21:55:50.541053+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "McMANUS, C. J., and STEPHENSON, J., concur."
    ],
    "parties": [
      "Wendell LITTERAL, Plaintiff-Appellant, v. The SINGER BUSINESS MACHINES COMPANY, a Division of the Singer Company, Inc., and John W. Tinkham, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nOMAN, Justice.\nPlaintiff brought suit to recover wages or compensation he claimed to be due him pursuant to the provisions of \u00a7 59-3-4, N. M.S.A.1953 (2d Repl. Vol. 9, pt. 1, 1974). The trial court found in his favor and awarded him $450.00. He has appealed, claiming he was entitled to judgment for a larger amount. We affirm.\nPlaintiff was employed by defendant as a service technician from March 16, 1959, until April 1, 1972, when he was discharged. His fixed wage was $180.00 per week, which was paid to him on a bi-weekly basis. In addition, he received quarterly commissions on maintenance contracts. These commissions varied, but the trial court found that they would have been approximately $150.00 for the first three months of 1972. Upon his discharge, he was paid his fixed weekly wage for work performed, for the period he was entitled to notice of discharge, and for accrued vacation.\nEffective January 1, 1972, defendant discontinued payment of commissions on maintenance contracts. Subsequent to the time of plaintiff\u2019s discharge, defendant began payment to its service technicians of an allowance in the amount of $4.25 per week, payable bi-weekly. This was made retroactive to January 1, 1972. However, plaintiff was not paid either this allowance or the commission of $150.00 for the first three months of 1972.\nOn September 26, 1972, after the filing of this suit in the district court, defendant made a written offer of settlement in the amount of $165.75. This amount was computed on the basis of $4.25 per week from January 1, 1972 to September 30, 1972. This offer was not accepted by plaintiff.\nHis contention is that since defendant failed to pay him the commissions for the first three months of 1972 within ten days after his discharge, or to give him written notice and make payment to him of the amount defendant conceded to be due by way of commissions, both his fixed wage of $180.00 per week and his commissions of approximately $150.00 every three months continued to be owing to him until the tender by defendant of payment on January 16, 1974, of the judgment entered in his favor. He relies upon \u00a7\u00a7 59-3-4 & 59-3-7, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1, 1974), which provide:\n\u201c59-3-4. Discharged employees.\u2014 Whenever an employer discharges an employee, the unpaid wages or compensation of such employee, where such wages are a fixed and definite amount, and not based on a task, piece, commission basis or other method of calculating such amount, the unpaid wages of such employee upon demand shall become due immediately, and the employer shall pay such wages to the employee within five [5] days of such discharge.\n\u201cIn all other cases of discharged employees the settlement and payment of wages or compensation shall be made within ten [10] days of such discharge.\n\u201cIn case of failure to pay wages or compensation due an employee within the time hereinbefore fixed, the wages and compensation of such employee shall continue from the date of discharge until paid at the same rate the said employee received at the time of discharge, and may be recovered in a civil action brought by the employee. Any such action must be commenced within sixty [60] days from the date of discharge; Provided, however, that the employee shall not be entitled to recover any wages or compensation for any period subsequent to the date of discharge unless he shall plead in his complaint and establish that he made demand upon his employer at the place designated for payment and payment was refused.\u201d\n\u201c59-3-7. Wage disputes \u2014 Unconditional payment of wages conceded to be due. \u2014 In case of dispute over wages, the employer shall give written notice to the employee of the amount of wages which he concedes to be due, and shall pay such amount, without condition, within the times fixed by this act [59-3-1 to 59-3-13]. The acceptance by the employee of any payment so made, shall not constitute a release as to the balance of his claim. The provisions of section 4 [59-3-4] shall not be applicable in cases arising under this section, except as herein provided.\u201d\nAs above stated, the wages, which were in \u201ca fixed and definite amount,\u201d were paid to and received by plaintiff upon his discharge. This payment complied fully with the requirements of the first paragraph of \u00a7 59-3-4, supra. Plaintiff, however, claims that under the language of the first sentence of the third paragraph of that statute, he was entitled to have his fixed wages continued until he was paid his commissions, and these were not tendered to him until January 16, 1974. The particular language upon which he relies reads: \u201cIn case of failure to pay wages or compensation due an employee within the time hereinbefore fixed, the wages and compensation of such employee shall continue from the date of discharge until paid at the same rate the said employee received at the time of discharge, * * *.\u201d [Emphasis added].\nIt appears to us that the only logical way of construing this particular language in a situation such as here presented \u2014 wherein we had wages or compensation which was due and which was fixed and definite in amount, and also wages or compensation which was due but not fixed and definite in amount \u2014 is to consider each class of wages or compensation separately \u2014 that is, (1) those fixed and definite in amount, and (2) those not fixed and definite in amount. We are of the opinion that this is precisely what the Legislature had in mind in providing for a different period of time in which wages or compensation in each class becomes payable upon discharge of the employee. This construction is consistent with the use of \u201ctime\u201d rather than \u201ctimes\u201d in the particular sentence upon which plaintiff relies. It is also consistent with the repeated use of \u201cwages\u201d and \u201ccompensation\u201d as meaning one and the same thing.\nPlaintiff would have us use \u201cwages\u201d as being that which is fixed and definite in amount, and \u201ccompensation\u201d as that which is not fixed and definite in amount, and then have us construe the statute as requiring payment of both within the respective times provided in order to terminate the obligation of the employer to pay either.\n\u201cCompensation\u201d is not defined in the particular act with which we are here concerned [\u00a7\u00a7 59-3-1 to 13, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1, 1974)], but \u201cwages\u201d are defined as \u201c * * * all amounts at which the labor or service rendered is recompensed, whether the amount is fixed or ascertained on a time, task, piece, commission basis or other method of calculating such amount.\u201d\nUpon the timely payment of the wages or compensation which was \u201cfixed and definite in amount,\u201d the defendant had no further obligation to plaintiff in relation thereto under the Act. The commissions, which were not \u201cfixed and definite in amount,\u201d and which were not paid within the ten days as provided in the second paragraph of \u00a7 59-3-4, supra, continued to be payable until paid, or until a tender of payment thereof had been made by defendant.\nAlthough the amount of these commissions varied from quarter to quarter, the trial court found that they were \u201capproximately $150.00 for the first quarter of 1972.\u201d This finding has not been attacked and was the basis for the judgment awarded in the amount of $450.00.\nThis leads us to the remaining question raised by plaintiff, and that is for what period of time, or for how many quarters, was plaintiff entitled to these commissions. The trial court held he was entitled to them for three quarters, or from January 1 through September 30, 1972. This holding was obviously predicated upon the following unchallenged finding of fact made by the trial court:\n\u201cAn offer was made by defendant Singer on September 30, 1972, to pay $165.75 as a full and final settlement of the pending lawsuit. This amount, based on new maintenance contracts for 1971 was calculated as follows:\n39 weeks (1-1-72 \u2014 9-30-72) at $4.-25/week = $165.75.\u201d\nAlthough, as found by the trial court and as conceded by defendant, this offer did not fully comply with the provisions of \u00a7 59-3-7, supra, the trial court concluded, and we believe correctly so, that this \u201c * * * was a valid and sufficient tender and terminated any further obligation of defendant * * * to the Plaintiff, subsequent to September 30, 1972.\u201d\nAs above stated, defendant discontinued payment of commissions on maintenance contracts as of January 1, 1972. Some time after plaintiff\u2019s discharge, defendant, in place of the commissions, made payments to its then service technicians of an allowance amounting, to $4.25 per week. This was made retroactive to January 1, 1972. The offer of September 30 was obviously made pursuant to and in accordance with this policy of paying this allowance.\nIt is true the offer of September 30 was made as a full and final settlement of the dispute and was not in fact paid, but in the meantime this suit had been filed by plaintiff on May 26, 1972. The offer was not acceptable to plaintiff, and he eventually recovered a greater amount by proceeding to judgment.\nUnder these circumstances, we are unwilling to hold the trial court erred in determining that plaintiff was not entitled to recover commissions after September 30, 1972. The judgment is affirmed.\nIt is so ordered.\nMcMANUS, C. J., and STEPHENSON, J., concur.",
        "type": "majority",
        "author": "OMAN, Justice."
      }
    ],
    "attorneys": [
      "Turp\u00e9n, Hunt & Booth, Tandy L. Hunt, Albuquerque, for plaintiff-appellant.",
      "Rodey, Dickason, Sloan, Akin & Robb, Richard C. Minzner, Albuquerque, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "533 P.2d 754\nWendell LITTERAL, Plaintiff-Appellant, v. The SINGER BUSINESS MACHINES COMPANY, a Division of the Singer Company, Inc., and John W. Tinkham, Defendants-Appellees.\nNo. 10031.\nSupreme Court of New Mexico.\nMarch 28, 1975.\nTurp\u00e9n, Hunt & Booth, Tandy L. Hunt, Albuquerque, for plaintiff-appellant.\nRodey, Dickason, Sloan, Akin & Robb, Richard C. Minzner, Albuquerque, for defendants-appellees."
  },
  "file_name": "0365-01",
  "first_page_order": 391,
  "last_page_order": 394
}