I think there should be a new trial granted in this case on the ground that the trial had before the. referee was upon a wrong theory.
The referee states by his opinion that he did not consider in any *106manner the agreed compensation provided by the verbal contract. Even if the contract was void by the Statute of Frauds and could 'not have been ■ • enforced as an executory contract, it having been executed by the parties the agreed compensation provided thereby was the measure of the services theretofore performed, or, at least, evidence of the price which the parties had .agreed upon and should have been taken into consideration by the referee in rendering his •judgment. (Adams v. Fitzpatrick, 125 N. Y. 127.)
The refusal of the referee to find- the third request of the plaintiff'that such a contract was entered into is sufficient indication that he tried the case upon a-wrong theory, even if his opinion cannot be used for the purpose of ascertaining that fact.
The theory of the trial having been wrong, I do not think this court can say that, upon the evidence, if'it had been properly tried the plaintiff established no cause of action. Manifestly the defendant, woiild not have been entitled to-charge interest on the capital as an expense of his business unless the plaintiff had agreed to it, ■ The referee repudiated the agreement and allowed" the defendant to charge up interest as a part of the expense of his business.
• I think, too, that with respect to the $9,000 of' stock, that the defendant did' not have the right tq charge that up as a total loss,' .inasmuch, as lie had, taken it upon bis debt and it had paid one dividend and was of some value. The fact that defendant had voluntarily paid plaintiff in excess of the $4,000 did not extinguish plaintiff’s: claim to this asset.
I have grave doubt, too, whether, under the contract as claimed by plaintiff, the $4,000- of guaranteed profits paid to the plaintiff was fairly proven to. be chargeable as an expense of the business. The agreement as claimed was not for a salary df $4,000, but was for fifteen per cent of the profits, which were guaranteed by the defendant to be at least $4,000. If fifteen per cent of the profits were less than $4,000, then, of course, the plaintiff would have no claim,for further compensation,. I think the total profits should have been ascertained without first deducting ;tli.e $4,000.
I, therefore, dissent from an affirmance of the judgment.
Judgment affirmed, with costs. Order filed. '