Appeal by plaintiff from the Superior Court of Cook county;
the Hon. HAROLD G. WARD, Judge, presiding. Heard in the third
division of this court for the first district at the December
term, 1951. Reversed and remanded. Opinion filed October 22,
1952. Released for publication November 17, 1952.
MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.
Plaintiff sued to recover for commissions under a written contract of employment with defendant. A copy of the contract was attached to the complaint as an exhibit. Defendant's motion to dismiss the complaint was sustained, the suit dismissed, and judgment entered accordingly, from which plaintiff appeals.
The only question argued upon this appeal is whether the complaint upon its face shows that the contract contained a condition precedent with which plaintiff did not comply and was therefore not entitled to recover the compensation claimed.
The contract of employment was for the year 1948. The relevant provisions for compensation are found in the following terms:
"1. Your salary and `Special Commission' for 1948 will be computed as follows:
a. It is our conservative estimate that shipments for the year ending December 31, 1948, into your territory will amount to approximately $107,467.
b. Your estimated 1948 salary computed at the rate of 4% of 75% of such estimated shipments indicated above will be $3,224 and you will be entitled to receive this amount, payable $124.00 Bi-Weekly as drawings.
c. At the end of the year, this estimated salary will be adjusted upward or downward to 4% of 75% of the actual such shipments for the year and your drawings will be charged against such adjusted salary.
d. Your 1948 `Special Commission' will be computed on the last 25% of the actual such shipments for the year at the rate of 6% on Women's Goods and of 7% on Men's Goods.
"2. Your salary and `Special Commission' is subject to the following provisions:
d. Only salesmen who are in our employ as of December 31, 1948, are eligible for the 1948 salary adjustment and `Special Commission' arrangement. If a salesman's service with the Company is terminated before December 31, 1948, the following rules will govern.
The complaint alleges that plaintiff resigned from his position October 15, 1948, and that the amount due him under the contract, after allowing to defendant credit for the amount drawn by plaintiff, was the sum of $2529.06.
Paragraph 2, subparagraph (d), of the contract is the basis for the claim made by defendant that this provision constitutes a condition precedent; that to be eligible for any Special Commission or adjustment thereof, he must work through December 31, 1948; and that because he resigned October 15, 1948, he has not performed and complied with the condition precedent.
We think the contract, though it makes reference to salary, is in essence the commission which the contract provides to be paid to plaintiff on a percentage basis. The drawings are based upon estimated shipments upon which the plaintiff would be entitled to commission. In other words, instead of withholding all of the commission until the end of the year, the plaintiff is allowed by the contract to draw ...