Dore v. Glenn Rock Mineral Spring Co.

KerwiN, T. Tbe only questions involved are whether the commissions were payable monthly under the contract, and the amount of recovery. If commissions were due monthly, then the plaintiff was entitled to payment when he demanded, at the end of each month, and refusal of defendant to pay was sufficient cause to justify plaintiff leaving the employment. La Coursier v. Russell, 82 Wis. 265, 52 N. W. 176; Jung B. Co. v. Konrad, 187 Wis. 107, 118 N. W. 548; Tilton v. J. L. Gates L. Co. 140 Wis. 197, 121 N. W. 331. The contract is not as plain as it might be. It provides for' payment of “commission of ten per cent, on all sales, to be paid in twelve equal and monthly instalments at the end of each and every month during the said year.” The argument is made that there could not be twelve equal payments if the commission were to be paid monthly, since the amount of monthly sales in contemplation of the parties at the time the contract was made would vary materially during the year, hence the agreement to pay in equal monthly instalments must have been intended to refer only to salary. But with this construction the word “monthly” is mere surplusage, since twelve equal instalments payable at the end of each month necessarily means twelve instalments of $75 each, payable monthly. But in order to arrive at the intention of the parties, which is the important idea to he kept in mind in the construction of contracts, every word in the contract should be given effect and not be rejected, if the writing will reasonably bear such construction. Harrington v. Smith, 28 Wis. 43. Now; it seems plain from the context that the parties had in mind the fixing of a time by the terms of the contract for the payment of the commissions as well as the salary: “At a salary of $900, and commission of ten per cent, on all sales, to be paid in twelve equal and monthly instalments at the end of each and every [162] month during the said year.” Twelve equal instalments at the end of each and every month makes definite the salary part of the contract, and twelve monthly instalments makes equally definite the payment of commissions monthly. This construction gives force and effect to the word “monthly,” while the construction contended for by the respondent would leave it mere surplusage. We conclude that salary and commissions were payable monthly. Eespondent invokes the rule of practical construction, and says that no demand for payment of commissions was made by plaintiff. This argument cannot avail the respondent, because the plaintiff testified that he made monthly demands and always insisted that the commissions were payable monthly. This is denied, however, by defendant, and no finding is made upon the question by the court below. The evidence appears to preponderate in favor of the plaintiff upon this point. The conclusion that the plaintiff, if entitled to recover, can only recover $414.70, and not $511, cannot be sustained. The plaintiff was entitled to his commissions on the $963 sale made to or through Wise, referred to in the findings. Under the contract the plaintiff was to have a commission on “all sales,” not on sales made by him personally, but on all sales made by the defendant, through whatever agency employed. By the contract the plaintiff was to have charge of the bottling plant and be general manager thereof. The Wise sale, therefore, was covered by the plaintiff’s contract and he was entitled to commissions thereon. It follows, therefore, that the plaintiff is entitled to judgment for $511 and interest thereon from March 1, 1907. By the Gourt. — The judgment is reversed, and the cause remanded with directions to enter judgment for plaintiff for $511 and interest from March 1, 1907..