Appeal by plaintiff from the Circuit Court of Kane county; the
Hon. HARRY W. McEWEN, Judge, presiding. Heard in this court at
the October term, 1951. Judgment affirmed. Opinion filed February
1, 1952. Released for publication February 19, 1952.
MR. PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Appellant, Louis H. Kleinhans, filed this action on June 11, 1948, in the circuit court of Kane county against appellee, G.L. Reasor, doing business as Reasor Manufacturing Company, to recover the sum of $18,728.24 as commissions alleged to have been earned by him while in the employ of appellee as a manufacturer's agent. After a trial before the court, a judgment in bar of the action and for costs was entered in favor of appellee and against appellant, and to reverse this judgment the plaintiff below appeals.
In his amended complaint appellant alleged that prior to April 15, 1944, appellee was in the business of manufacturing machinery and equipment in the City of St. Charles, Illinois; that prior to that time appellant had been employed by appellee as a manufacturer's agent on a salary basis for the purpose of procuring manufacturing business for the appellee; that on April 15, 1944, appellant and appellee entered into a new employment arrangement whereby the appellee agreed to pay appellant as compensation for his services a commission or engineering fee of three per cent of all business secured through his efforts, whether it was government or non-government business, and in addition thereto, a monthly salary of $300, which arrangement it was agreed should continue for ninety days in order that the parties might determine the advisability of continuing the same; that on June 23, 1944, this employment agreement was modified to the extent that the $300 monthly salary should be discontinued.
The amended complaint further alleged that in pursuance of the foregoing agreement, appellant procured government contracts totaling the sum of $923,311.32 on which he is entitled to a commission of three per cent; that appellee had paid appellant a total of $8,800 on account of commissions earned plus the additional sum of $171.08, leaving a balance due appellant of $18,728.24, for which sum he prayed judgment.
The appellee answered the amended complaint and admitted the execution of the contract dated April 15, 1944, but denied that the appellant earned the commissions which he claimed and alleged that appellant had been paid in full. As an additional defense, appellee alleged that all of the contracts upon which appellant sought to recover a commission were with the United States Government and were by their terms subject to cancellation, and that said contracts had been partially cancelled and that appellant had been paid commissions on the full sum collected by appellee from the Government.
The written contract of employment upon which appellant predicates this action, so far as pertinent here, is as follows:
"While you were at the office this week to discuss a revision you would like in your employment arrangement, I am sorry I did not know that you intended to catch a noon train as otherwise I would have planned to set everything aside and conclude our discussions. . . . I believe that your efforts can be devoted for other interests besides ours so that your compensation can be thereby materially increased. The amended plan of employment that you propose as I understand it, is as follows:
"1 From and after April 15, 1944, it is understood that you will not be required to devote substantially your whole time and effort during reasonable working hours to our business, but that you may represent in conjunction with our activities such additional companies as you may see fit, provided however that you will not represent companies in direct competition with our activities without first securing our consent.
"2 As compensation for your services you are to receive an engineering fee of 3 per cent on the business secured through your efforts, whether it be government or non-government business.
"4 From and after April 15, 1944, we will pay you the sum of $300.00 monthly as an advance on the commission ...