#### Harry L. Mooar, Appellee, v. Wheeling Tile Company, Appellant.

Gen. No. 21,827.

(Not to he reported in full.)

Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Reversed and remanded.

Opinion filed December 19, 1916.

Statement of the Case.

Action by Harry L. Mooar, plaintiff, against the Wheeling Tile Company, a corporation, defendant, to recover commissions on orders solicited by him.

On November 15, 1910, the parties hereto entered into a contract whereby plaintiff was employed to sell tile, to be manufactured by the defendant, within a designated territory, and as compensation for his services he was to receive a commission on all orders solicited by him, and also on mail orders coming from his territory, whether solicited by him or not.

Plaintiff secured many orders for different quantities of the various kinds of tile manufactured by defendant, largely from contractors who were dealers in or users of tile. Said orders usually covered their floor tile requirements for a year from the date thereof. These orders were not in the form of contracts but were in the nature of general requisitions, showing the name of' the customer, the gross amount of tile ordered, the purchase price, the terms of payment and shipment, and were sighed by plaintiff as agent for defendant, and contained the signature or initials of the purchaser. From time to time the customers would order out specific quantities and kinds of tile under these general orders, as the requirements of their business demanded.

The said contract of employment provided that plaintiff should receive as his compensation a certain *279percentage of the selling price of all “goods sold,” and recited further, that “all settlements on the account of the second party (plaintiff) shall be made by the tenth of each month, covering accepted and shipped orders of the month previous.”

Newman, Popfenhusen & Stern, for appellant; Edward E. Johnston and Lawrence A. Cohen, of counsel.

James J. Kelly, for appellee; John A. Burke and John T. Fitzgerald, of counsel.

Abstract of the Decision.

1. Master and servant, § 66 * —when goods must he actually sold before commissions are earned. Where a contract of employment provides that commissions shall be based on the selling price of all goods sold, there must be an actual sale of the goods and not a mere contract to sell before the commissions are earned, as the term “goods sold” implies a transfer of title.

2. Sales, § 183*—when title to ordered goods passes. Title does not pass until goods ordered have been manufactured and appropriated for the purpose.

3. Master and servant, § 66*—when contract construed as requiring shipment of goods as condition precedent to payment of commissions. Where a contract of employment provides that a servant shall receive as his compensation for the sale of goods a certain percentage of the selling price of all goods sold, and that all settlements on the account shall be made by the tenth of each month, covering accepted and shipped orders of the month previous, and orders in the nature of general requisition are obtained under which it was customary for the customers to order specific quantities and kinds of tiles as requirements of their business demanded, such contract must be construed as making the shipment of the tile sold a condition precedent to the payment of commissions, and especially where "such construction of the contract is adopted by the parties themselves by the sending of a statement showing commissions due *280for tile shipped on orders during the preceding month, accompanied by a check in payment of such commissions, and a voucher reciting that the servant had received the amount named therein in full payment thereof.

*

See Illinois Notes Digest, Vola, XI to XV, and Cumulative Quarterly, same topic and section xjujalier.

*279Mr. Justice McDonald

delivered the opinion of the court.