The appellant employee had an agreement with the respondent employer to sell products on commission.
The employer unilaterally informed the employee that it would pay a lower commission rate for a recently negotiated sale.
The employee did not accept this anticipatory breach and continued to press for the higher rate.
When the commission became payable, the employer tendered payment at the lower rate.
The employee sued for the shortfall more than two years after the employer's initial notice but less than two years after the deficient payment.
The Court of Appeal held that the limitation period did not begin to run until the employer actually failed to pay the full commission due, as the employee had elected to treat the contract as subsisting.
The appeal was allowed and the summary judgment dismissing the action was set aside.
