#### A. C. Jackson, Defendant in Error, v. Browning, King & Company, Plaintiff in Error.

Gen. No. 22,088.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Habby P. 'Dolan, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed December 18, 1916.

Rehearing denied December 29, 1916.

Statement of the Case.

Action by A. C. Jackson, plaintiff, against Browning, King & Company, a corporation, defendant, for commissions on sales 'of merchandise by plaintiff as a department manager of defendant’s store. From *198a judgment for plaintiff for the amount claimed $138.79, defendant brings error.

In 1909 defendant made a contract with plaintiff that he should be paid a commission of two per cent, on all sales in the hoys’ and children’s department over $75,000 a year. This agreement was renewed verbally each year thereafter and the commissions were paid to plaintiff for the years 1910 and 1911. Defendant’s books of account showed that the total sales in plaintiff’s department for the year 1912 were $92,448.59, of which $6,939.93 were sales to customers having charge accounts.

Bentley, Burling & Swan, for plaintiff in error; Willard Brooks, of counsel.

O ’Shaughnessy & O’Shaughnessy, for defendant in error; Joseph L. Toohey, of counsel.

Abstract of the Decision.

1. Master and servant, § 84 * -—when evidence sufficient to show that charge items are correct. In an action by a department store manager for commissions on charge sales, evidence held sufficient to show that the charge items did not include charge sales made prior to the year for which plaintiff was claiming commissions.

2. Master and servant—when master cannot change contract for commissions. A department store cannot change a contract for the payment of commissions to one of its managers by a change in its method of bookkeeping whereby such manager is credited with charge sales at the time they are made instead of at the time they are paid.

3. Estopped, § 47*—when defendant estopped to raise defense. A defendant will not be permitted to raise a defense upon a theory inconsistent with its own line of conduct.

4. Master and servant, § 84*—when evidence insufficient to *199 show that commissions were not earned. In an action by a department store manager for commissions on charge sales for a specified year, evidence held insufficient to establish the defense that plaintiff did not earn the commissions and that the commissions earned had been paid.

*

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

*198Mr. Presiding Justice McSurely

delivered the opinion of the court.