#### Meyer Norden, Appellee, v. Remington Typewriter Company, Appellant.

Gen. No. 19,634.

(Not to foe reported in full.)

Appeal from the County Court of Cook county; the Hon. John E. Hillskotter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Reversed and remanded.

Opinion filed June 9, 1914.

Rehearing denied June 23, 1914.

Statement of the Case.

Action by Meyer Norden against Remington Typewriter Company, a corporation, to recover commissions on typewriters delivered by defendant to a purchaser after plaintiff left the employ of defendant. To reverse a judgment in favor of plaintiff, defendant appeals.

Plaintiff was employed as a salesman of defendant to sell typewriting machines. The contract was oral but was upon express terms as to weekly salary and amount of commissions on each machine sold. On August 15, 1911, he secured a contract with Armour & Company to purchase of defendant two hundred typewriters of the style known as the Remington, and such additional number as it might take before August 15, 1913, deliveries thereof to be made from time to time. In December, 1911, plaintiff left defendant’s employ. In 1912, another agent of defendant negotiated an arrangement with Armour & Company to take other styles of typewriters called the Monarch and Smith Premier and deliveries of a certain number were made in the summer of 1912. This suit involves the right of plaintiff to commissions on Monarch and Smith Premier machines so delivered. Plaintiff contends (1) that he is entitled to commissions on all typewriters taken pursuant to the contract of August 15, 1911; and (2) that after he left defendant’s employ there was a modification of the contract, without his consent, whereby the Monarch and Smith Premier ma*282chines were substituted for the Remington, and that he is entitled to commissions on those substituted.

Abstract of the Decision.

1. Master and servant, § 82*—when evidence of terms of contract of employment admissible under general issue. In an action by a typewriter salesman to recover commissions on sales of machines delivered to a purchaser after he had left the employ of defendant, exclusion of testimony of the manager of defendant that plaintiff’s oral contract of employment did not entitle him to commissions on machines delivered after he left its employ, on the theory that defendant was seeking to establish a forfeiture as an affirmative defense and that it could not be shown under the general issue, held, error.

2. Appeal and error, § 592*—necessity of motion for new trial to preserve rulings for review. Error in striking out the testimony of a witness is preserved for review by exceptions taken to the ruling; motion for new trial is unnecessary.

Clark, J., took no part in this decision.

Ambrose Risdon, E. L. Shaner and William H. Holly, for appellant; Mills & Holly, of counsel.

G. J. Norden, for appellee.

Mr. Justice Barnes

delivered the opinion of the court.