The appellee entered into a written contract with the appellant to act as “ supervising salesman ” and manager of the appellant’s business at Streator, Ill., in October, 1895, and worked for the company about sixteen weeks. The contract was, in substance, that appellee was to receive in full for all his services except commissions a salary of $12 per week, payable weekly, lost time to be deducted, and was to make “ an average of one good and acceptable sale or lease for each week’s salary drawn by him, and agreed to refund five dollars in cash for each sale or lease he fell short of this average,” and for each such failure appellant was to deduct said five dollars from appellee’s commissions.
In addition to the above appellee was to receive twenty per cent commission on all approved sales and leases of family sewing machines at retail price made by the appellee.
There were other provisions in the contract not necessary to notice.
The evidence conclusively shows that appellee failed to make sales or leases of any machines during seven weeks of the sixteen he worked for the company, and fo.r which he had received his salary of $12 per week, and the appellant was entitled to have offset against appellee’s commissions, $35. The evidence shows that appellant only owed appellee on commissions and other accounts, some $26. Yet the jury returned a verdict for appellee for $37, on which judgment was rendered against appellant.
The verdict was manifestly against the weight of the evidence.
The appellant was entitled to an off-set as against appellee’s account of a sum equal to the entire amount of his claim, hence the verdict should have been in its favor.
The judgment of the court below is reversed and the cause not remanded, there being no cause of action, with costs against appellee.