In brief phrase it may be said that the verdict obviously is wrong. Plaintiff, a Bangor *595mercantile concern, founded this suit on demand promissory note which defendant, a former employe, made and delivered to it almost five years before. Defendant filed an account in set-off, predicated that there remained unpaid to him, as his proportionate part accrued from profit-sharing plan in plaintiff’s store, a sum of money greater in amount than that due on the note. Superior Court jury so viewed the situation.
L. V. Jones, for plaintiff. A. L. Thayer, for defendant.Whether the main proposition of the defense, namely, that plaintiff carried on business in gain-dividing way, was satisfactorily shown, may well be regarded as doubtful. If, as defendant testified, such system was there set in action, with banquet publicity the act attendant, and sundry persons thereby probably to benefit, it is significant that other testimony was not offered in contradiction of evidence tending persuasively to opposite conclusion. It seems inconsistent that defendant would wait three years from the time he asked an accounting, partial compliance with which he said was had, and next advert to the bonus only after his discharge from employment for what he hastened to say was fit cause.
Yet grant acceptance tentatively to defendant’s general insistance, then, having reference to the total profits proven, it becomes glaringly apparent that mathematics is a factor the jury did not take enough account of, for application of arithmetic’s rule readily makes evident that defendant owes plaintiff rather than that plaintiff owes him. Motion sustained. New trial granted.