#### John F. Waters, Defendant in Error, v. Universal Store Specialties Company, Plaintiff in Error.

Gen. No. 20,386.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1914.

Reversed and remanded.

Opinion filed December 8, 1915.

Statement of the Case.

Action by John F. Waters, plaintiff, against the Universal Store Specialties Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on a contract of employment. To reverse a judgment for plaintiff for $215, defendant prosecutes this writ of error.

Plaintiff’s cause of action is based on a written contract of employment with defendant wherein the latter agreed, among other things, to advance to plaintiff the sum of $50 per week for a period of one year. This contract is dated May 28, 1913, and plaintiff’s claim is for nine weeks’ advances, $450, less a credit of $235, *4being moneys due defendant from customers, which moneys plaintiff had collected and retained.

While defendant in its affidavit of merits sets forth several defenses, yet upon the trial of the case the principal defense relied on was that plaintiff had not given a bond as required by the contract, but in lieu thereof had entered into a new contract of employment which superseded the written one.

The only evidence offered on behalf of the plaintiff was the contract itself, and plaintiff’s testimony that he had not received advances from defendant for a period of nine weeks, and that there was due him under said contract for advances the sum of $450; that he had collected moneys due defendant to the extent of $235, for which he had given it credit, leaving a balance due of $215.

It appeared, on examination of plaintiff under section 33 of the Municipal Court Act (J. & A. ¶ 3345), and from the testimony of H. E. Dugan, district sales manager of the defendant, that plaintiff had received in advances more money than was earned by him in commissions under the contract of employment; that shortly after October 31, 1913, in a conversation with plaintiff, Dugan read to plaintiff a letter which he had received from defendant, which letter was as follows:

“With regard to Mr. Waters, his account has been speedily going behind, as you know, and the statement for the last week shows a net overdraft, or difference between overdraft and prospective, of $460.98. We wish you would have a talk with Mr. Waters and endeavor to show him that we cannot possibly keep remitting him $50 per week unless he does business to warrant our doing so. When the writer saw him, and in his correspondence about September 1st, he told of a great many sales that he surely could close during September, or soon, and these sales have not matured. If they had, no doubt his account would be in different shape. If he will consent to having his remittance reduced to an-amount that he can earn, we will con*5tinue with him, but if not, we shall certainly have to cut him off the remittance list. In his application he states that he can give a personal bond, signed by two owners of real estate. If he can furnish such a bond that will protect us against loss by making him the advances that we have agreed to make against his commissions, we will be willing to go along with him, but we cannot take a chance of losing any money on his account.”

That at said conversation he requested plaintiff to furnish a bond as required under section 9 of the contract and in accordance with the letter above quoted. Plaintiff testified that Dugan stated to him that the company might want him to give a bond.

Dugan testified that plaintiff stated he would not give a bond; that upon the refusal of plaintiff to give a bond, he informed plaintiff that defendant would make no further advances to him, but that if he wished to continue selling goods on the same commission, defendant would advance him fifty per cent, on commissions earned, and apply the remaining fifty per cent, on the indebtedness due defendant; that plaintiff stated that he was satisfied but that he wanted him (Dugan) to write defendant a letter for him, asking the company to advance sixty-five per cent, of his earned commissions, and apply the remainder, thirty-five per cent., on the indebtedness due from him to the defendant.

Plaintiff did not deny that these terms were discussed, but insisted that he refused to accept the proposition; admitting, however, that he asked Dugan to write defendant a letter requesting that he be allowed to draw sixty-five per cent, instead of only fifty per cent, of his earned commissions.

The testimony further disclosed that thereafter plaintiff sent in two orders on which his commission amounted to $96.'26; that shortly thereafter he telegraphed' defendant as follows:

“No sinews of war, commissions last week $96.” That after sending this telegram, he received a check *6from Dugan for $48.13, exactly fifty per cent, of the commissions earned by him; that this was the last business transaction plaintiff reported to the defendant. The evidence further disclosed that on November 14, 1913, plaintiff received the following letter in response to one he had written defendant on the 12th:

Abstract of the Decision.

Contracts, § 385 * —when evidence insufficient to establish existence of contract sued on. In an action to recover on a written contract whereby defendant agreed to employ plaintiff, evidence examined and judgment for plaintiff held not sustained by the evidence, it *7appearing therefrom that the contract sued on had been annulled by consent of both parties, and a new arrangement on different terms substituted in regard to the subject-matter of such contract, to which plaintiff had assented.

*6“I have received your personal letter of the 12th inst., and as before you receive this you will have received the remittance sent you yesterday, no doubt financial matters will be all satisfactory. I believe that you may possibly work a little harder on a straight commission basis, and if you do, I feel sure that you will get in enough orders so that you will make more money than you did on the basis of a regular weekly remittance. I appreciate the difficulties you have had on account of competition you have had, but it is no worse in Chicago than it is in New York and many other sections, and so long as we have so many superior features on our machines and the right sort of salesmen to present these features to the merchants, I am convinced that we will get our share of the business. I suppose the company cannot afford to pay more than its regular percentage for getting business, and naturally a badly overdrawn account is discouraging here, and calls for some action to head off a possible loss.”

Upon this evidence the court found the issues for the plaintiff.

William J. Dillon, for plaintiff in error.

James J. Kelly, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Pam

delivered the opinion of the court.