
    WALKER E. MORRISON (AMENDED TO MABEL MORRISON, ADMINISTRATRIX OF THE ESTATE OF WALKER E. MORRISON, DECEASED), PLAINTIFF-APPELLEE, v. WILLIAM H. RUSSELL COMPANY, OR WILLIAM H. RUSSELL, INDIVIDUALLY, IN THE ALTERNATIVE, DEFENDANT-APPELLANT.
    Argued January 19, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    Por the plaintiff-respondent, Ward <& McGinnis.
    
    Por the defendant-appellant, Nicholas Martini.
    
   Pee Curiam.

The plaintiff had judgment for $304.31 in the Passaic District Court. The case was tried before the court without a jury. The action was for salesman’s commissions alleged to have been earned by the plaintiff’s husband in his lifetime. The court allowed commissions at the rate of twenty-five per cent, on the gross sales. The plaintiff’s proofs showed that the deceased was to be paid twenty per cent, commissions on goods sold by him and an extra five per cent, was- to be paid for fair and honest dealing. However, the case is entirely barren of affirmative proof of fair and honest dealing; hence it was error to allow the extra five per cent, commission.

The plaintiff, as before indicated, sued in a representative capacity. She did not testify to any transaction with or statement by her intestate bearing upon the issues involved. 2 Comp. 8tal., p. 2218. She did call the defendant to prove the contract and the amount due thereunder to her intestate, and did testify to a conversation which she had with the defendant after her husband’s death. This, however, did not open the door to the defendant to prove conversation which he claimed to have had with the deceased. Hence, the ruling by the learned trial judge upon evidence offered was correct.

We find no merit in the other points submitted.

The judgment below will be reversed so far forth as there is included therein commission for the extra five per cent., not proved to have been earned.

The judgment is, therefore, affirmed in the sum of $70.14, the balance found after deducting from the recovery below five per cent, of the total sale receipts in question.  