The judgment in this case must be reversed, on account of the insufficiency of the evidence to warrant; the verdict, and also for the instructions given the jury by the court.
To warrant a recovery by the plaintiff, upon the grounds of action alleged in the petition, it was incumbent ujion him to establish, not only the fact that he was employed by the defendants, or by some one authorized to contract for them, to act as their agent, as charged in the petition, but also, that he had rendered the defendants the services for which he claims compensation, and the amount of compensation to which he was entitled, by the terms and stipulations of said contract, for the services thus rendered.
By the terms of the contract, as alleged in the petition, and as exhibited by the instrument of writing given in evidence by the plaintiff, and upon which he, in part, relies to maintain the action, it will be seen that the entire compensation which plaintiff was to receive for all the services to be jierformed by him, was only for ten per centum of the amount which, from the time, to wit, he might actually col*195lect on account of the sales made by Mm as defendants’ agent,' provided, however, that no commissions whatever should be allowed Mm in cases where parties purchasing reapers, or reapers and mowers, failed to pay more than sixty-five dollars. It is also expressly stipulated in the contract, that the defendant “ should at all times have the right to the exclusive and entire control over all orders, contracts, notes, assets, and accounts, accruing and growing out of the sales of said macMnes,” and, in case the defendants should take “these papers and matters” into their own possession and control, “they should account to and pay plaintiff in proportion to the services rendered by Mm previous to the closing of Ms connection with their business.”
It is not pretended that the plaintiff rendered the entire service for which it is stipulated in said contract he should be paid ten per "centum of the amount actually collected; but his action is based upon the fact, that the defendants took said business out of plaintiff’s hands before its final completion. Evidently, therefore, the plaintiff, by the language of the contract, has no right to claim the same compensation - for the services actually rendered, as was to have been paid Mm had the business remained in Ms hands, and he had fully completed and wound it up. By the contract, he agreed to accept, for the services actually rendered, the pro- ■ portional value with that which it was stipulated he should receive for the entire service which he agreed to render.
An examination of the statement of facts shows that there was no evidence whatever, submitted to the jury, from which they could determine the compensation to wMch plaintiff was entitled. The verdict of the jury, therefore, is not only unsupported by the evidence, but no verdict whatever in plaintiff’s favor could be properly rendered upon it. The error in the verdict is not, however, justly attributable to the jury. It resulted, no doubt, from the instructions of the court, to the effect, that should the jury find in favor of the plaintiff, they should allow Mm the reasonable value of the services *196which he had rendered. And as plaintiff had been permitted to testify that the services which he performed for defendants, as their agent, were reasonably worth ten per centum on the gross amount of sales of said machines made by him for them, the verdict was but the legitimate conclusion to be deduced from an application of the instruction of the court to the evidence ; but although this instruction would have been strictly correct and appropriate, in the absence of a contract between the parties, it was clearly inapplicable to this case, and, in effect, gave the plaintiff a different and greater amount of compensation for the services performed than he agreed to accept by his contract.
"Wb are also of the opinion that it was incumbent upon the plaintiff to have furnished evidence, tending to ¡Drove that the parties to whom he sold the machines, on account of which he brought this suit, were generally reputed in their neighborhood to be responsible for the amounts for which he contracted with them. He was only authorized by the contract to sell to men of this character, and it was necessary for him to prove this fact, to throw upon the defendant the burthen of showing that the claims could not be collected.
The construction placed by the court upon the act of December 17,1861, allowing interest upon accounts, was, in our opinion, altogether erroneous. "When the act is considered in connection with other laws passed at the same session of the Legislature, and in the light thrown upon them by recurrence to the situation of the country at the time they. were enacted, we think it quite obvious that it was the purpose of the Legislature to allow interest on accounts previously contracted, from and after the first day of January, after the enactment of the law, as well as upon such as should be contracted subsequent to its enactment; nor can we see that the Legislature was not folly authorized to enact such a law, if it saw fit to do so.
The judgment is reversed and the case remanded.
Beversbd and. remanded.