Lindley

Pursuant to stipulation of the parties the judgment is modified to award plaintiff Walter O. Lindley $6,783.07 with interest thereon at the rate of 7 per cent per annum from August 18, 1961, until paid, and costs herein. As so modified it is affirmed; remittitur to issue forthwith. Appellant to recover costs on appeal.

Although denominated an action for declaratory relief and damages for breach of contract this is a simple suit for money and was tried as such. Walter 0. Lindley, the only interested plaintiff, recovered judgment of $9,291.90, consisting of three sums, separately earned, as a salesman for Sawyer Cabinet Company. Defendant appeals.

Walter was in the employ of Sawyer from 1948 to November 1957 as a salesman. Under agreement of February 1950 his commissions were at 3½ per cent. By oral agreement of December 1953 the rate was increased to 4½ per cent. By written agreement of March 4, 1957 the rate of commissions was reduced to 3½ per cent. Prior to March 4th Lindley had taken orders in a substantial amount which were accepted by Sawyer. After March 4th he continued to take orders until November 25th when his services for the company were terminated. For the work performed both before and after March 4th he was paid at the rate of 3½ per cent. Certain orders taken before March 4th were not executed by Sawyer until after that date. The question on this phase of the case was whether Lindley was entitled to receive pay at 3½ per cent or 4½ per cent. The court applied the 4½ per cent rate…