{dissenting in part). I am dissenting from that portion of the decision which holds that there was a jury question as to the nature of the contract, that is, as to the intent of the parties. The evidence, which is without dispute, was given by the manager of the La Crosse Liquor Company who made the contract, with Martindale and is corroborated by one other witness who had a similar contract and acted *456as an independent contractor. It appears from the testimony of the manager that upon the application of Martindale to act as salesman “we decided we would give him an opportunity to act as salesman for us.” He came to us “because he was formerly connected with the distillery business and thought he had had enough experience to warrant ... a chance to prove himself as a salesman.” It was “a straight commission job; he was to be reimbursed for what he could produce in the line of selling and taking orders for this merchandise.” Upon being asked whether Mr. Martindale had to have a state permit, the manager said, “Yes. . . . On new employees or people acting as salesmen for us, if they are financially embarrassed to start, we sometimes finance that, a ten-dollar fee the state charges, and if they are financially able they pay for it themselves; it’s their own obligation to pay.”
“Q. If you purchase it yourself does the salesman later reimburse you? A. Yes.
“Q. You don’t know what you did with reference to that in this specific case? A. ... I don’t remember whether he had his license fee at that time or not; ... it would have been a matter that would have been straightened out at a later date; it is the salesman’s obligation. . . . He was paid a commission and was definitely interested in getting those orders out as fast as he could. His obligation to us was to definitely create a volume in monthly sales every month so that he was deriving enough volume so it was profitable to him as well as us. . . . He was expected to further his business. . . .
“Q. But if he had no such excuse as that you would have discharged him? A. If it’s largely neglect he would have been discharged.
“Q. You reserved the right to do that? A. Yes. ... If he wasn’t salesman enough to create enough volume to make a living, it was a matter for us to either give him more opportunities, ... or let him decide what he wanted to do. . . .
*457“Q. And if he wasn’t producing in sufficient volume to satisfy you, you reserved the right to discharge? A. Yes.
"Q. That’s part of your original hiring agreement? A. Yes.
"Q. Was there any quota fixed for him to meet per week or per month? A. No, sir.
“Q. In other words, that was left entirely to your discretion? ... You and your superiors? A. That’s right.”
The evidence is that both parties were interested in “volume.”
There was an agreement entered into between Martindale and the La Crosse Liquor Company. Under the evidence in the record, some of which has already been referred to, can it be said that there is contained in the express agreement terms under which Martindale could not assume to act on his own as an independent contractor? The trial court in construing the contract reached the conclusion that he was an independent contractor. In judging the testimony, I am convinced that he was correct in so holding. There are no circumstances here which compel reading into the arrangement that Martindale entered into the relation of master and servant. One construction would be for services of and by an independent contractor. If the other is to be accepted, he would be within the employer-employee relationship.
We are dealing with an oral contract. It does not differ in its effectiveness from a written contract. It likewise gathers its force from the mutual assent of the parties to the terms and conditions. “. . . it is not only necessary to interpret those terms for the purpose of ascertaining the intention of the parties in entering into the agreement, but also so to construe them as to give legal effect and operation to such intention. The importance of a reasonable and just construction of every instrument or contract is quite evident and certain. So, too, it is equally important that the rules of construction should be regulated by law, and be governed by *458distinct, settled, principles, so that there may be uniformity and certainty in their application.” 1 Wait, Actions and Defenses (1877), p. 114, sec. 1. Goldstein v. D’Arcy (1909), 201 Mass. 312, 87 N. E. 584. By overlooking this well-established rule a decision by a jury may result in imposing obligations not warranted by the express agreement of the actual parties. See Anno. 65 A. L. R. 648. If there were any dispute as to the terms of the contract, that dispute as to the questioned “term” would be one of fact, to be tried by a jury. But when the terms of the contract are settled and the plans and purposes of the contracting parties are agreed upon by the parties, the construction is then for the court.
Much that is said in the opinion of the majority is argument overlooking, it seems to me, the rule controlling construction of contracts. It is true the courts have recognized the difficulty of drawing the distinction between contracts which create independent contractors and those creating the relationship of employers and employees. There have been many attempts at stating a rule, and the generally accepted one is that an independent contractor is one who renders service and represents the will of his employer only as to the result of his work and not as to the means whereby it is accomplished. This has resulted in describing a test by which to determine whether a person is to be classified as a servant or an independent contractor. “The most important test is . . . the control over the work which is reserved by the employer. ... It is not, however, the fact of actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.” 27 Am. Jur., Independent Contractors, p. 486, sec. 6.
The engagement of Martindale to work for the La Crosse Liquor Company required him to perform certain services in the interest of that company. The contract is the important *459factor. Does the setup or general pattern stipulate or place sufficient control over Martindale’s methods and plans as to subject him to the orders of the company as a matter of right in respect to the details of his work so as to place him in the category of servant as distinguished from an independent contractor? In other words, we are to inquire as to what was agreed to by the parties in order to determine upon the existence of an actual relationship.
Under a commission method of compensation of a salesman, the character of the contract depends upon the reservation of the right of supervision in the employer, the nature of the work, the service calls, and the duties with regard to collections, as well as to respond on demand to orders of an employer. The fact that one is working on a commission, owns his own car, and pays his own expenses may be of importance. The agreement must be given full consideration, for as said in the cases where this difficult question has arisen, each case must stand on its own facts. The rule or test for distinguishing between the two classifications has been phrased differently by different writers. An acceptable statement is found in Neitzke v. Industrial Comm. (1932), 208 Wis. 301, 303, 242 N. W. 163: “The relation of employer and employee exists where one, performing work for another, does so under a contract express or implied, which compels the one performing to do work under the control of the employer and at the same time gives to the employer the right to direct the other’s conduct, to dismiss him from the service, and to have at all times authoritative control over the work.” Instances- have arisen where the differences between an independent-contractor and the employer-employee relationship are so definite that no question as to the character of the employment is raised. The two kinds of employment do exist, are recognized in the law; and neither one, so far as the courts are concerned, is to be favored over the other. *460The court, when the facts are undisputed, must determine into which classification the contract, express or implied, falls.
The learned trial judge, in dealing with the problem in the case at bar, particularly as to whether Martindale was an employee of the La Crosse Liquor Company or an independent contractor, found a standard in Kassela v. Hoseth (1935), 217 Wis. 115, 258 N. W. 340: The general doctrine to which he adhered is supported by the decision in Employers Mut. Liability Ins. Co. v. Brower (1937), 224 Wis. 485, 272 N. W. 359, where the question is also considered. In his memorandum decision, the trial judge said: “In the case at bar all the La Crosse Liquor Company wanted was volume of orders. Naturally, the relationship could be terminated for violation of law on the part of the one selling the company’s products so as to implicate the company with the state or federal government. That would be true in almost any similar contractual relationship. Likewise, either party could conclude the relationship at will unless it was for a definite time or for a definite quantity of work. . . . While the relationship may have been at will, while it lasted it was a relationship of independent contractor and the fact that it could be terminated at any time under the authorities would not defeat the relationship. It seems to the court without any question that the Martindale-La Crosse Liquor Company relationship had all the required incidents of an independent contractor and not that of employer and employee.”
The evidence warrants the' conclusion reached by the trial court, which is to the effect that the contract, although designating a territory in which Martindale was to engage his efforts, still allows him to work according to his own methods in an automobile owned and maintained by him, but being subject to control of employer only as to result of work. This places him in the classification of independent contractor.
*461The claim is not borne out by any testimony that the La Crosse Liquor Company had any right to direct when or how the Martindale automobile should be run or managed. The evidence is that while working on commission basis he operated his car at his own expense and on his own time; that he was free from direction and control by the employer as to where, inside of the designated territory, when, or in what manner he was to drive or sell the employer’s merchandise. He was, of course, required to report and remit for sales and collections, but the employer was interested and concerned only with the volume of orders secured by the salesman. All this is consistent with the character of an independent-contractor relationship. The acts of the employer in the way of suggesting help or means by which the salesman could increase his volume of sales do not indicate compulsion or show a reserved right of control, but rather show a desire to co-operate with the salesman, this desire prompted by an expectation of mutual benefit. In this effort an employer may exercise limited control over work without rendering employee a mere servant, but control which will have that effect is control not only of result of work but also means and manner of performance thereof, and where employee represents will of employer as to result of work but not as to means or manner of accomplishment, he is an independent contractor. Merritt v. E. L. Bruce Co. (La. App. 1936), 166 So. 195.
As to the other questions involved, we agree with the trial court that a jury question exists as to the negligence of Martindale being the cause of the accident, and we are of the opinion that the ruling with relation to the admission of evidence that the La Crosse Liquor Company carried workmen’s compensation insurance protecting it against injury to any of its employees was not error. Employers Mut. Liability Ins. Co., supra.
*462From an examination of the record I am of the opinion that the trial court disposed of the matter in accordance with the rules of law both as to the liability arising under the contract between Martindale and the La Crosse Liquor Company and with respect to the admission and rejection of evidence.
I am authorized to state that Mr. Chief Justice FRITZ and Mr. Justice Brown concur in this dissent.