(after stating the facts as above). The one question presented is that of the construction of the contract; the company contending that under the fifth section of the contract commissions in excess of the guaranteed minimum would be payable only after the total commissions exceeded the total minimum for the whole period, in which case nothing would be due plaintiff.

By the terms of the contract plaintiff had to do only with the technical side of the business. He had nothing whatever to do with sales, which were left entirely in control of the company. He superintended development of the mines and production of the ore; the amount of production being determined by the company. If it directed that there be no production, plaintiff would continue to receive his guaranteed monthly minimum compensation. If the entire production had been sold during the year, it is evident that the contractual commission thereon, over and above the $10,000 minimum paid, would have been paid over to plaintiff. This is evident because, even if there were doubt under the contract as to whether the entire contract period applied in figuring the excess, the parties by their conduct indicated their view of the construction to be given; for, notwithstanding production had ceased before the end of the first year, and it was uncertain when it would be resumed, and there was the possibility that, if the later period were taken into consideration in fixing the minimum, a sum smaller by $5,000 might be due for surplus commissions than if only the $10,000 minimum were deductible from the commissions, nevertheless the company paid plaintiff at the end of the first year the excess of over $1,600 above the then minimum of $10,000, and admits and offers to pay a still further sum inadvertently omitted from that calculation.

It is our view of the contract that plaintiff’s right to commission was fixed when the ore was produced as required by the contract, subject to sale of the ore for the purpose of determining the amount of the. *680commission whenever after production the sale occurred. If this were not so, the sales being entirely within the control of the company, jt might so manipulate them as materially to affect the plaintiff in his rights. Near the end of the first year it might have had opportunity to sell these 5,000 tons to advantage, and if it retained them until the beginning of the second contract period the plaintiff would have had no advantage of production in the first period, but would have been compelled to take his chances upon production during the second period being sufficiently large to afford him a surplus of commissions over and above the stipulated minimum for the entire contract period. Unless such a construction of the contract is imperative, such intention should not be imputed to the parties.

We do not look upon section 5 as being out of harmony with this construction. It seems to have been inserted out of an abundance of caution to forestall any claim that when the contract ultimately expired plaintiff’s right to commission would end as to ores then unsold; and the reference in the section to “excess of said minimum guaranty” refers to the minimum of $10,000 per annum as provided in the fourth section, which fixed the two settlement periods. Neither section conflicts with that which specifies his rate of commission as dependent on “when the sale price f. o. b. cars Shawneetown is” as by the there stated figures fixed.

We are of opinion that tjie true intent and proper construction of this contract is that commissions on the ore produced in either of the two periods fixed by section 4, as and when the ore is sold, must be accredited to the period wherein it was produced, and that plaintiff is entitled to receive the commissions so accredited to that period, less what was paid him on his minimum guarantee for such period only.

This was the construction adopted by the District Court, and its judgment is accordingly affirmed.