
    Rathenberger, Respondent, vs. Jacob, Appellant.
    
      March 7
    
    April 3, 1918.
    
    
      Appeal: Affirmance lry equally divided court: Master and servant: Breach of duty: Forfeiture of compensation.
    
    A decision of the circuit court to the effect that a salesman whose employer’s contract of agency with an automobile company was to expire at an early date did not, by soliciting for himself the appointment to such agency after that date, so breach his contract with his employer as to forfeit the amount due to him thereunder, is affirmed, this court being equally divided on the question.
    Appeal from a judgment of the circuit court for Marathón county: A. H. Reid, Circuit Judge.
    
      Affirmed.
    
    Plaintiff was a salesman in tbe employ of defendant, wbo bad a contract with the Ford Motor Company for an agency in this state. Defendant’s contract expired August 1, 1915. During June and July of that year and while still in defendant’s employ as such salesman the plaintiff and a third person circulated and obtained signatures to a petition recommending plaintiff and such other person to the Ford Motor Company for appointment to the agency then held by the defendant for the new term commencing at the expiration of defendant’s then existing contract.
    The efforts of plaintiff were unsuccessful in that regard and defendant obtained a renewal on his contract. Defendant did not know of such efforts by the plaintiff until after August 1st, and then refused to- pay a balance claimed by plaintiff under the contract between them on the ground that there had been a breach of duty By plaintiff towards the defendant in so soliciting such new contract for himself while in defendant’s employ.
    The action was tried without a jury, and the court found that plaintiff’s efforts to secure the agency did not constitute a breach of his contract with defendant and did not work a forfeiture of tbe amount claimed by him, and granted bim judgment for tbe amount claimed. From tbis judgment defendant appealed.
    For tbe appellant there was a brief by Kreutzer,, Bird, Okoneslci & Buchner of Wausau, and oral argument by O. B. Bird.
    
    For tbe respondent tbe cause was submitted on tbe brief of B. A. Morse of Autigo.
   Eschweileb, J.

Justice Rosenberry did not participate in tbis case. Tbe Chief Justice and Justices Vinje and OwEN are of tbe opinion that tbe judgment should be reversed; Justices SiebeoKeb, Kerwin, and tbe writer that it should be affirmed. It follows under tbe rule that tbe judgment of tbe lower court must be affirmed. Estate of Carter, ante, p. 89, 166 N. W. 657,

By the Court. — The judgment of tbe circuit court is affirmed.  