Mills

This is an action based on an oral contract to recover certain commissions. The plaintiff had judgment in the trial court and the defendant appealed under section 953a of the Code of Civil Procedure.

The plaintiff alleged that he had been employed by the defendant as its exclusive agent to sell bags; that thereafter the defendant and the plaintiff agreed to modify that contract; that by the modification the plaintiff promised the defendant that the defendant might employ other agents to sell bags, and the defendant promised to pay the plaintiff a commission on the sales made by those extra salesmen. These were complete allegations on the subject of consideration, and brought the plaintiff fairly within the provisions of section 1605 of the Civil Code, and the consideration was sufficiently pleaded to withdraw the case from the doctrine stated in Acheson v. Western Union Tel. Co., 96 Cal. 641 , [ 31 Pac. 583 ],

The defendant earnestly contends that there was a fatal variance, and presents the point by calling attention to the ruling of the trial court denying its motion for a nonsuit, and, later, its refusal to give certain instructions requested by defendant. We think this…