Schweitzer

This action was brought by appellant to recover money alleged to be due under a written contract by the terms of which he became appellee’s sales agent. At the close of his evidence, a motion for a nonsuit was granted, and from the judgment of dismissal he prosecutes this appeal.

Appellee is engaged in the wholesale merchandise business at San Francisco, and under the contract in question entered into' on December 5, 1918, appellant agreed to proceed in its interests to the Orient to procure orders for merchandise, for a stated commission to be computed upon consummated sales. Appellee, however, guaranteed, and was to advance, compensation at the rate of $1,250 per month, together with all expenses of appellant and his assistant, for whose services he was to pay; the sums so advanced to appellant to be charged against, and deducted from, commissions computed at the contract rate. These advances were all made, and appellant concedes that, as understood by both parties, commissions were to be deemed earned only if and when the orders obtained by him were filled and fully paid for.

Pursuant to the agreement, he, with his assistant, went to the Orient, and in the spring of 1919…

(dissenting). I am unable to agree with the view expressed in the prevailing opinion that the agreement of April 27, 1920, is not controlling. Neither the appellant, appellee, nor the Commercial Company, Limited, could be chargeable with foreseeing the political and other local conditions responsible for the failure of the latter company to accept and pay for the goods upon delivery, and it cannot be considered that the contract between appellant and appellee was entered into in view of any such contingency. When the goods arrived at Vladivostok, and the purchaser, by reason of changed political or other local conditions occurring since the time of agreement to purchase, was unable to pay for the same, the seller could pursue any one of four alternative remedies, conceded in the brief of counsel for appellee to be as follows:

In this ease the seller adopted the second of the above-mentioned alternative remedies. It entered into a contract with the purchaser in pursuance of that remedy. The fact that it chose to retain possession of the goods and sell the same as the agent of the vendee as a means of procuring for itself the purchase price of the goods sold would not, in the event…