#### Benjamin Devries, Defendant in Error, v. Elaborated Ready Roofing Company, Plaintiff in Error.

Gen. No. 21,555.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Reversed.

Opinion filed June 1, 1916.

Statement of the Case.

Action by Benjamin Devries, plaintiff, against Elaborated Ready Roofing Company, a corporation, defendant, to recover balance of commission alleged to be due. To reverse a judgment for plaintiff, defendant prosecutes a writ of error.

Defendant was engaged in making, selling and laying roofing. Under a contract made with its manager, plaintiff solicited orders directly from consumers. His contract required him to make an estimate or measurement of the number of “squares” of material (each containing one hundred square feet) each job would require. He was directed how to make the measurements and was allowed an extra square on each job for any discrepancy. His compensation was to be fifteen or twenty per cent, of the selling price, according to the quality of material ordered. After estimating the cost of the job according to the amount and quality of material.it would take, and securing the order at a gross price, he would send in the order and from the price therein named defendant determined the amount of material to supply. Owing to inaccurate measurements on which the gross price of the job was based, it was often found necessary to supply more than an additional square to complete the job, thus necessitating loss on' the contract. These shortages in measurements were discussed when ascertained, and deductions therefor were made from plaintiff’s commissions, *537and shown on the monthly statement of accounts submitted to plaintiff according to which he was paid. While he objected thereto, “he took the money and went right on working,” as testified to by defendant’s manager. Plaintiff himself testified that he was told he would have to stand the “cut” and that the matter was final. After he left defendant’s employ he brought this suit for practically the amount of such deductions.

Abstract of the Decision.

Accord and satisfaction, § 4 * —when acceptance of commissions during employment constitutes. Where a salesman employed on a commission basis accepts his commissions less deductions for errors committed by him, though under protest, but continues in the employment after being told that the matter is final and he will have to stand “the cost,” he cannot, after leaving such employment,' recover the amount of such deductions, as his acceptance of his commissions under such circumstances constituted an accord and satisfaction.

S. B. Neltnor, for plaintiff in error.

No appearance for defendant in error.

*

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

Mr. Justice Barnes

delivered the opinion of the court.