Opinion.
Campbell, O. J.,delivered the opinion of the court:
Our interpretation of the contract of 22d May, 1882, under which appellee claims all of the account sued on, except the first item, is that he was not to be paid commissions until the gin and other things sold were paid for. The letter of the appellant of 22d May, 1882, did not modify the contract as to¡ when the appellee was to be paid commissions. It had reference only to what sales he was to have commissions on and not to when he ivas to receive them. That was prescribed in unmistakable terms by the contract entered into on the day of the date of that letter. The expression “ sales with acceptable orders ” has reference to' the acceptability of the orders to the appellant, and its acceptance by it, for by the twelfth paragraph of the contract it expressly reserved the right “ to reject any order which they may deem it for their interest not *477to fill.” This furnishes the key to the meaning of the expression “ Sales with acceptable orders,” which occurs in some of the letters between the parties.
The fourteenth paragraph of the contract is, “ 14. The party of the first part agrees to allow the party of the second part 15 per cent, from the list prices on each sale of said machinery, when the order is accepted, and 15 per cent, of the list price on repairs sold, and 10 per cent, on presses * * * but only on machinery delivered, and not on orders not filled, nor on machinery returned -* * The commissions on cash sales to be paid when collection is made from the customer, and the commissions on such portion of the sales represented by notes to be paid when the notes are respectively collected, and to bear the same rate of interest as the notes.” From which it is manifest that the time when the appellee became entitled to be paid his commissions was the collection of the price of the articles sold.
There is nothing in the evidence to authorize the instruction that the appellee was entitled to 10 per cent, on the sale to Wm. Eay.
It follows from these views that the first and second instructions for the plaintiff below should not have been given, and that the first asked by defendant should have been given, and that the second and third instructions asked by the defendant should not, have been modified, but should have been given as asked. The third instruction for plaintiff should have added to it the words, “ for which collection has been made ” or other equivalent’ words, so as to limit the recovery of commissions to money collected on the sales.
No objection was made in the court below to the refusal of the first instruction asked by the defendant, and on well-settled practice, we would not notice that instruction were it not that the judgment must be reversed on other grounds.
Judgment reversed, and new trial granted.