The plaintiff, in his complaint, set up two causes of action: First, upon a special contract, whereby he agreed to render service to the defendant during the year 1899, as “ credit man, confidential man and general manager of the defendant’s business.” He alleges that the defendant agreed to pay him for his service a sum equal to twenty-five per cent of the profits of the defendant’s business, during the year ending on the 31st of December, 1899. He also alleges performance of the contract on his part by rendering the service required and that twenty-five per cent of the profits for that year was $75,000 and that he received no part thereof, except the sum of $13,932. For the second cause of action he sues upon a quantxim merxdt, claiming that the reasonable worth of his services during the year 1899 was $75,000, for which he had received $13,932, and he demands judgment for the difference between $75,000 and the amount received hy him on account, with interest upon such balance. The answer of the defendant contains a denial of the allegations of the complaint respecting the contract set up by the plaintiff, but admits the plaintiff was paid $13,932, and then, as to the second cause of action, admits the performance of service by the plaintiff and the payment of $13,932, but denies the value of the service to he as claimed. As a separate defense to both causes of action, the defendant avers that the plaintiff was employed by him *19during the period embraced between the 1st day of November, 1898, and the 27th day of January, 1900, and for many years prior thereto, and between the dates named was engaged in the performance of duties “ which were in their general nature the same duties which plaintiff performed for the defendant for many years prior to the period mentioned,” and asserts that it was agreed and understood between the plaintiff and himself that during the period from November, 1898, to January, 1900, the plaintiff was to receive a salary of $12,000 a year. At the trial the plaintiff had a verdict for $52,578.50, and from the judgment entered on that verdict and from an order denying a motion for a new trial this appeal is taken. There are no exceptions to the charge of the trial justice nor to refusals to charge.
There was a sharp conflict of evidence respecting the existence of an agreement between the parties as to the plaintiff’s compensation for the year 1899, and as to the terms and conditions of his employment. The jury found that it was agreed that he should receive twenty-five per cent of the profits of the defendant’s business for the period named in the complaint, and there is sufficient evidence to justify their finding on that issue of fact. It cannot be said that the verdict in this regard is against evidence, but it is claimed that improper evidence was admitted in support of the plaintiff’s claim on that issue. The trial justice allowed the plaintiff to show his relation to the defendant’s business in prior years and to give proof as to the compensation he received for his service during those years, based upon the allowance to him of a proportion of profits as compensation. That evidence Was objected to on the ground that it related to independent contracts or independent relations not connected with the defendant’s firm, as it existed when the contract alleged in the complaint was made. But upon the issue as made and tried the evidence was admissible. It is stated in the answer that from the 1st of November, 1898, to the 27th of January, 1900, the plaintiff was engaged in the performance of duties for the defendant of the same general nature as those performed for the defendant for many years prior to that period. It is a case then in which, under the circumstances, this evidence was proper, for it tended to show that the agreement alleged in the complaint was of the same character as agreements between the parties for preceding years, and, therefore, was, in *20a sense, con-oborative of the plaintiff’s claim. Or, in other words, the probability of the defendant having agreed to give the plaintiff a proportion of profits for the year 1899, as compensation for his services, is supported by the fact that some such arrangement had been had with the plaintiff in antecedent years.
After the commencement of the trial and during its progress, the defendant moved to compel the plaintiff to elect upon which cause of action he would proceed. The motions were denied at first, and evidence was taken of the value of the plaintiff’s service during the year 1899. At the close of the proofs the motion to compel the plaintiff to elect was renewed, whereupon the plaintiff stated that he would elect to proceed on the express contract, and the case was submitted to the jury on that cause of action alone. It was not error for the court to deny the motion when it was first made, or until the case had developed in such a way as to enable the trial judge, in view of the whole case, to pass intelligently upon the subject. But there remained in the case evidence as to the value of the service, irrespective of a special contract, and it is claimed that that evidence should have been stricken out as it might have influenced the jury. This, however, is a case such as is referred to in Dodge v. Weill (158 N. Y. 350), where it is said : “ Even in a case where both parties admitted there was a contract for services, but each denied the special agreement alleged by the other as to the amount to be paid therefor, it was held proper for either to prove the value of the services as it bore on the probability as to which version was true.” (Citing Barney v. Fuller. 133 N. Y. 605 ; Insurance Company v. Weide, 78 U. S. [11 Wall.] 438, 440.) Here, by the pleadings which were before the court for its guidance, the plaintiff asserted one contract and the defendant set up another. We think the evidence was properly retained in the case as affecting the probability of the respective versions of the parties as to the nature and character of their contract.
There are no other exceptions that require consideration, but it is strenuously insisted that, even assuming that the contract was made as claimed by the plaintiff, the amount of the verdict is largely in excess of twenty-five per cent of the profit for the year 1899. The defendant admits a profit for that year of $101,000. The plaintiff claims that the net profits of the business for that year were $230,000. *21It is insisted by the defendant that there is no testimony to show that the profits for that year were as claimed by the plaintiff. The court charged the jury that the defendant admitted that the profits were $101,000, and that the plaintiff claimed they were $230,000, and it is nowhere intimated nor suggested on the record that that was not a proper statement of the respective claims. There is no criticism of the charge and no request made upon the subject of profits, but it was left to the jury to determine what they were; and if they found the defendant was liable for twenty-five per cent thereof they were instructed to deduct the sum of $13,932.65, the amount which the plaintiff received during the year 1899. The question then remains whether there was evidence to show that those profits were as claimed by the plaintiff. He testified concerning them, and various statements of account were put in evidence, as, for instance, the aggregate of the debit side of the profit and loss account, the merchandise account on the credit side of the profit and loss account, and the inventory on the credit side of that account. The plaintiff testified concerning the manner in which the profit of $230,000 was made up, and the details were put before the jury in figures in his testimony. If these details were wrong the defendant was in the possession of his own books, and from them could have shown the incorrectness of the plaintiff’s method of computing profit. . It is claimed by the defendant that that incorrectness is sufficiently shown by the accounts introduced, and that a dissection of the exhibits of the plaintiff establishes that there was an item of $136,000 at least which should have been deducted from profits as proved by the plaintiff, that item of $136,000 being the amount of an inventory of 1898. The plaintiff’s claim is that this item had already been deducted in his computation. There is an item of $40,000 carried into the profit and loss account, on account of sales of merchandise for 1898, and the amount of that item was ascertained after an allowance for that merchandise. The plaintiff was familiar with the books of the defendant, and his computations were apparently made from what he knew of the contents of those books. He testified that he made up this account of profit in the same way and on the same basis used for the ascertainment of profit by the defendant in his business in preceding years, and that is uncontradicted.
*22The evidence in the case with respect to profit might have been made more definite and it may be unfortunate for the defendant that the case was not more closely tried on that subject, but it was allowed by him to go to the jury without more exact data, and it cannot be said that the verdict in its amount was not sujiported by evidence upon which the jurors could find as they did.
The judgment and order appealed from should be affirmed, with costs. -
Hatch and Latjghlin, JJ., concurred ; Ingraham and McLaughlin, JJ., dissented.