Opinion by
Mr. Justice Bean.
1. No rule of law is better settled than that the ruling of a trial court in allowing or refusing an amendment of the character here under consideration will not be reversed on appeal unless it appears affirmatively that there was a plain abuse of discretion to the material injury of some substantial right of the appellant: Henderson v. Morris, 5 Or. 24; Baldock v. Atwood, 21 Or. 73 (26 Pac. 1058); Garrison v. Goodale, 23 Or. 307 (31 Pac. 709). There is no such showing in this case. The amendment was allowed before the trial, while there was yet ample opportunity to protect the interests of the plaintiff by a continuance if he was not then prepared to meet the allegations of the answer as amended; and no doubt an application for that purpose, if in furtherance of justice, would have been favorably considered by the trial court. But no such application was made, and it is not claimed on the hearing here that the plaintiff was in any way prejudiced on the merits by the allowance of the amendment.
2. Nor is there any force in the contention that the amendment is such a departure from the original answer as to amount in effect to a new and wholly different defense. It is true it sets up a counterclaim not found in the original answer, but it does not change the substantial controversy between the parties. The real gist of the action is *215the amount due the plaintiff, if any, under his contract of hiring, and the amendment was germane thereto, and tendered an issue on a material fact arising out of the transactions which form the basis of plaintiff’s action, and was therefore entirely proper.
3. The objections to the depositions were not made until the defendant offered to 'head them to the jury, and do not go to the competency of the witnesses or the admissibility of their testimony. It is claimed that the commission under which they were takeh was not dated on the day the notice stated the application therefor would be made, but on the succeeding day, and that the party before whom they were taken designates himself in his certificate as a “commissioner of deeds,” and not as one of the officers to whom the statute provides such commission may issue. These objections are formal rather than substantial, and should have been made by motion to suppress the depositions before the trial. The provisions of the statute as to notice, and the rank and character of the officers before whom depositions may be taken, are intended for the benefit of the party against whom the testimony is to be used, and if he, knowing of some informality in this respect, fails to move in the matter at a time when it might be remedied by retaking the depositions, or in some other manner, he ought not to be permitted to raise the objection at all. “If he may,” says Mr. Justice Strong, “he is allowed to avail himself of what is substantially a fraud. Par*216ties to suits at law may assert their rights to the fullest extent; but neither the plaintiff nor a defendant is at liberty to deceive, either actively or passively, his adversary, and a court whose province it is to administer justice will take care that on the trial of every cause neither party shall reap any advantage from his own fraud”: Shutte v. Thompson, 82 U. S. (15 Wall.), 151. In that case it was admitted that the deposition was not taken in conformity to the act of congress, nor before the officer designated therein; but it was held that the objection came too late when made at the trial for the first time. In Newton v. Porter, 69 N. Y. 133, the point was made that the commission under which a deposition was ‘taken was not executed by the person to whom it was issued, and the court held the objection was waived because not made until the evidence taken under the commission was offered at the trial. “It is,” says the court, “we think, a .wholesome rule that objections to the execution of a commission, where the party has an opportunity to make them before the trial, should be raised by motion, and if not raised in this way when such opportunity exists, they should be deemed to have been waived. Whether such an objection is to formal defects merely, or, as in this case, goes to the right of the person who executed the commission to act as commissioner, makes, we think, no difference in the application of the rule, if the fact of disqualification is known to the party who seeks to exclude the evidence a sufficient time before the trial to enable him to make his motion.” To the *217same effect is the ruling of this court in Sugar Pine Lumber Company v. Garrett, 28 Or. 168 (42 Pac. 129). Now, in the case before' us, the commission was executed about six weeks before the trial; and, while it does not appear at what time it was returned to the clerk, the presumption, in the absence of anything to /the contrary, is that it was so returned within a reasonable time after its execution, and that the plaintiff was advised, or could have advised himself, of the facts upon which his objections are founded before the trial commenced, so that they could have been presented by a motion to suppress, and thus have given the defendant an opportunity to correct the informality by retaking the depositions. The ruling of the trial court on this question is clearly in furtherance of justice, and supported by the authorities.
4. In our opinion there was no error in the instructions of the court that under the contract of February, eighteen hundred and ninety-three, plaintiff could not recover compensation for time lost through illness. By the. terms of the contract it is agreed that plaintiff should devote “his entire time and ability” to the interests of the defendant, for which he was to be paid two hundred dollars per month “ during the year, except the portion of said time that through illness or any other cause is not devoted to their interests, although, if he sells enty thousand dollars’ worth of leather goodf them during said time, then there is to be duction from said salary for loss of time.” By *218provision the time lost through illness or otherwise was not to be paid for unless plaintiff should make sales to the amount specified, and there is no allegation or claim that he did so. But it is said defendant exercised its option to terminate the contract before the expiration of the year, and thus deprived plaintiff of the opportunity to make the necessary sales. But defendant had a perfect right to terminate the contract at any time upon the requisite notice, and there is no stipulation therein that plaintiff should be allowed to make any designated amount of sales, or that he should have any longer time than the life of the contract in which to endeavor to do so. He was employed to sell goods at a stipulated salary for the term of one year, with a provision allowing the contract to be canceled by either party at any time upon fifteen days’ notice, and when so terminated, all rights under it ceased, and plaintiff’s compensation must be determined by the condition of affairs at that time. If he had sold seventy thousand dollars’ worth of goods under the contract, he would be entitled to his salary of two hundred dollars per month, without regard to loss of time; but if he had not a deduction must be made for such loss. His compensation'was specifically limited by the contract to the time actually devoted to the service of efendant, unless his sales amounted to the spec-sum: This is the only condition upon which uld claim pay for time lost. ’If, therefore, for ison he failed to make such sales, either be-be was unable to do so, or because defendant *219did not furnish the goods, or the contract was terminated by the voluntary act of the parties, or canceled in the manner provided therein, he is clearly not entitled, in an action for wages, to recover for time not devoted to the service of defendant. Finding no error in the record, the judgment of the court below is affirmed. Affirmed.