This' action was brought to recover the value of seiwicea alleged to have been performed by the plaintiff for the defendants in procuring for them certain contracts, concessions or rights from the Chinese government, among others, one for mining coal..
The complaint charges, among other things : “IY¡ That in or about the month of February, 1898; this plaintiff, at .the special instance and request of the said association, China Railways and Concessions Project, undertook to obtain, on behalf of the said association and in the name of its: said instrument, American China Development Company, concessions and grants of right.from the Imperial Government of China, through its accredited representatives, for the obtaining of which the said association had been organized. And that thereafter this plaintiff so conducted, himself: *49in and about the said undertaking that by and through his sole and personal efforts, endeavors and labors there were obtained certain concessions and grants of right of great value.
“ Y. That among the concessions and grants of right so obtained by this plaintiff was one for the opening, working and mining of extensive deposits of coal upon territory adjacent to the line of a proposed railway to run from the City of Hankow * * * to the City of Canton, * * *.
“ YI. On information and belief, plaintiff alleges that the reasonable value of the services by him rendered in securing said coal concessions is at least $750,000. * * "*
“X. That it was the understanding and agreement between this plaintiff and the said association and said American China Development Company that plaintiff should be paid reasonable and fair compensation for all work done and all results achieved by him in the respects aforesaid. * * *
“ XII. That as a part of and incident to the merger of the China Railways and Concessions Project, with its successor association, the Chinese Railway Syndicate, the last named association assumed and agreed to pay all liability to this plaintiff for services rendered by him in the respects aforesaid, and that upon the continuance by the Chinese Railway Syndicate of the existence of the corporation American China Development Company, the said corporation American China Development Company assumed and agreed to pay all liability of the said syndicate to this plaintiff for services rendered in the respects aforesaid.”
The answers of the respective defendants — and they are substantially identical — contain: (1) a general denial of the material allegations of paragraphs IY, Y, YI, X and XII of the complaint, excepting certain matters not relevant to this appeal; (2) allege that if any services were rendered by the plaintiff in respect to the matters set forth in the complaint, such services were voluntary and gratuitous; (3) “ X. Defendant, for a further, distinct and separate defense, reiterating the allegations of the earlier defenses so far as the same are applicable thereto, alleges, on information and belief, that the various contracts and concessions'set forth in the complaint herein were not procured through the efforts of any one person, but were procured by the joint services and efforts of the different per*50sons composing the association known as the ‘China Railways and Concessions Project’ and other agents in China and in -the United States daring a period of two or more years prior to the granting of such concessions and not through- the sole services and efforts of plaintiff;” (4) a plea at bar, arising, out of the prosecution of two former actions upon the same subject-matter and the settlement thereof by the payment to the plaintiff of the sum of $15,000; (5) payment to the plaintiff of $15,000 in full discharge and satisfaction of any and all claims arising out of the matters set forth in the complaint, and (6) a-release under seal by plaintiff-of the causes of action alleged in the complaint.
At the trial the-plaintiff’s right to a recovery was confined solely to the.question whether lie obtained a concession to mine coal. He had a verdict for $391,666.66, and from the1 judgment -entered thereon and an order denying a motion for a new trial each defendant appeals. They challenge the validity of the judgment principally’upon the grounds (1) that plaintiff never obtained for the defendants- a concession to mine coal; (2) that they did not assume or agree to pay him.a reasonable compensation for his services in obtaining a concession to mine coal; and (3) that the cause of action set out in the complaint was extinguished by the settlement of the two former actions referred to..
The consideration of these questions necessitates a review at some length of the facts involved, from which it appears that in 1895-there was'formed an unincorporated association called the-China Railways and Concessions Project (hereafter called the project) for the purpose of securing certain rights or concessions in China, and .whatever rights were thus secured were to betaken in the name oftlie-defendant American China Development Company, a Hew Jersey corporation, which was formed about this time or- shortly' .thereafter. The project ivas divided into thirty shares of $1,000 each, of which $27,000 was taken, the plaintiff being an original subscriber to the extent of one share, and it seems that he thereafter acquired one and a half shares additional. The money thus raised was expended • without securing for the subscribers any substantial benefit, and in February, 1898, the plaintiff was requested by certain members of the project to devote his time and services to the matter for the purpose of securing the concessions desired. *51Additional money was: raised by subscription and the plaintiff was requested to go to China, and, according to his own testimony, he was offered $25,000'-a year and one-fourth of the profits which might be made if concessions were granted. He refused to go to China,-but at his own suggestion was requested by the project, or some of its members, to negotiate with his Excellency Wu Ting Fang, the Chinese Minister at Washington, for the purpose of obtaining through him the desired concessions. He at once entered1 into active negotiations with the result that' on April 14, 1898, three instruments were signed by the Chinese Minister and the American China Development Company. By the first of the'se- instruments the development company acquired the right to build a railroad •from Hankow to Canton, The second, in the form of an addendum, provided for an extension of the railroad, upon the same terms, from Hankow to Pekin, in case a contract with a Belgian syndicate for such a road should be canceled. The first agreement recited that whereas, His Imperial Majesty the Emperor of China, had deputed His Excellency Sheng Tajen, as director general of Imperial Chinese Railways, South, to construct certain railways and, whereas, a Chinese company had been formed, called the Chinese Railway Company, under imperial sanction, for the construction of railways, and whereas, His Excellency Sheng Tajen had designated His Excellency Wu -Ting Fang to enter into a contract for the purposes thereafter set forth with the American China -Development Company, the agreement was' made. It is unnecessary to state tiie terms of the agreement further than that the development company was,- in form, to advance the money and construct the railroad for the Chinese company, and as a guaranty of good faith that it would do so and carry out the terms- of the agreement, it was to deposit $100,000- in a bank or trust company in the city of Hew York or Washington: Attached to the two agreements was a certificate to the effect that His Excellency Wu Ting Fang had authority on the part of the Chinese government to execute the-same.-
The third instrument by reason or growing out of which is claimed a concession to .mine coal was obtained, recites that whereas the agreement as to the construction of the railroad just described had been made and “ Whereas, coal is one of the necessary articles to be used for working the said railway after its completion, How, *52Therefore, it is hereby resolved that as soon as the said Chinese Railway Company shall have obtained concessions from the Government to open and Work coal on territory adjacent to the said railway, they will authorize the said American China Development Company and the said American China Development Company undertake to prospect, open and work the said' coal,” providing the funds therefor — terms and details to be arranged with the director general of the Chinese railways. Immediately after the execution of these instruments steps were taken by some of the active members of the project to raise the $10,000 required to be deposited as a guaranty, and apparently' for that purpose and to meet other necessary expenses, another unincorporated association, called the Chinese Railway Syndicate (hereafter called the syndicate — one of the defendants), was formed, which was to take over the interests of the original unincorporated association, the project. The shares of the syndicate consisted of 50* of $5,000 each, members of the project being allowed to subscribe proportionally for the shares in the syndicate and being credited with the amount of their original subscription with interest. In this way the $100,000 was raised and deposited as required by the agreement, and stock of the corporation the development company ■—-the other defendant — which had theretofore been held by dummies Was issued to members of the syndicate in proportion to their respective holdings and they were also given the right to subscribe proportionately for the balance of the stock of the company. The company then actively engaged in the prosecm tion of the enterprise. An engineer was sent to China to make preliminary survey of the proposed railroad and examination of the coal deposits along its line, and he thereafter made a full and complete report. The development conqiany then commenced the construction of the railroad. How far it proceeded, or to what extent such construction was carried on, does not clearly or definitely appear from the record before us. It, however, does appear that the Chinese government, for some reason not disclosed, sometime thereafter, canceled all the concessions which had been made. This resulted in negotiations being opened with the Chinese government, for the purpose of having it pay to the development company the damages it sustained by reason of such cancellation. The negotiations finally culminated on the 29th of August, 1905, when *53an agreement was made between the Chinese government and the development company, by which the former was to pay to the latter as “ a reasonable indemnity for the cancellation of the said contracts” the sum of $6,750,000, and in consideration of which payment the Chinese government was to be entitled “ to all property of the American China Development Company in China, railway constructed, materials., plans, mining concessions, and everything to which the American China Development Company has any right, direct or collateral, in China.” The agreement contained other provisions which it is unnecessary to state, it being sufficient to say that the agreement was subsequently carried out.
The plaintiff, after having obtained the concessions or agreements -'Executed by His Excellency Wu Ting Eang on the 14th of April, 1898, claimed that he was entitled to compensation for the services rendered by him in securing them. He testified that when the syndicate was formed, the late Senator Brice, who was one of the leading members thereof, assured him that in recognition of his services the shares to which he was entitled to subscribe as a member of the project would be issued to him without additional payments by him, and for that reason he did not make any additiona payments; that in October, 1898, he received notice that his opportunity to take such shares, by reason of his failure to pay, was withdrawn and that his claim for services would not be recognized; and thereupon he commenced an action against the members of the syndicate and the development company to recover the value thereof; that a few months later he brought a second action against the same parties, claiming that he had been wrongfully and unlawfully deprived as a member of the project pf an interest in the syndicate, and. demanding an accounting and settlement; and in June, 1900, these actions were discontinued by consent, upon payment to the plaintiff of the sum of $15,000, in consideration of which he executed a release to the defendants for any and all claims “ in connection with or arising out of the negotiation of any and all contracts and concessions for the construction' of a railway in the Empire of China for the China Bail ways and Concessions Project, • the American China Development Company, and the Chinese Bail-way Syndicate, and the various members thereof * * * which have been heretofore the subject of two certain actions. * * * ”
*54Shortly, after the settlement of those actions the plaintiff commenced the present one, by which he sought to recover $750,000 for his services in obtaining a coal concession ; $100,000 for obtaining a • banking concession, and $50,000 for services generally in advancing the interests of the defendants. The only question submitted to the jury was whether the plaintiff had obtained the coal concession, there being no proof of the other two claims. At the conclusion of plaintiff’s case the defendants moved to dismiss the complaint upon the ground, among others, that the cause of action alleged had not been proved. The motion was denied and an exception taken, and the defendants then rested without offering any evidence and asked for the direction of a verdict in their favor. This was denied and an exception taken.
The. first, and what seems to me to be the principal question presented by the,appeal, is whether the plaintiff did, in fact, procure for the defendants from the Chinese government a concession- to mine coal. It is clear that the agreement, which has been designated- as the third one executed by His Excellency Wu Ting Fang on the 14th of April, 1898, standing alone, gave to the defendants no such right, and the jury, at the request of defendants’ counsel, was so instructed. That this was its ultimate purpose cannot be seriously questioned. The jury, as evidenced by their verdict, found that its purpose was accomplished, since the concession was obtained, and I am of the opinion there is sufficient evidence to sustain their finding in this respect. The answer of -each defendant alleged that such concessions were not procured “ through the sole services and efforts of plaintiff,” but that the same “ were procured by the joint ¡services and efforts of the different persons composing the association known as the ‘ China Bailways and Concessions Project ’***.” As a pleading this allegation is not an admission that the plaintiff obtained for the defendants a concession to mine coal. When so considered, if the plaintiff avails himself of it, he must accept the allegation in its entirety. He cannot accept what makes in his favor and reject what counts against him. (Gildersleeve v. Landon, 73 N. Y. 609; De Waltoff v. Third Ave. R. R. Co., 75 App. Div. 351; Shrady v. Shrady, 42 id. 9.) The answers were in evidence (Holmes v. Jones, 121 N. Y. 461; Tisdale v. President, etc., D. & H. C. Co., 116 id. 416; Field v. Surpless, 83 App. Div. 268), and *55when the allegation referred to is considered as evidence, the rule is different. Then a party is not estopped from, questioning the portion of his adversary’s pleading which is against him; on the .contrary, he is at liberty to use the admission so far. as it makes in his favor and to disprove the balance. (Mott v. Consumers' Ice Co., 73 N. Y. 543; Whitney v. Town of Ticonderoga, 53 Hun, 214; affd., 127 N. Y. 40.) The answers alleged that a concession to mine coal was obtained and while this was not conclusive as against the general denial that the plaintiff obtained such concession, it could be considered with the other evidence in determining the truth of that allegation. (Talbot v. Laubheim, 188 N. Y. 421.) The answers of the defendants in the two other actions referred to were put in evidence, in each of which an admission was- -made that “ oh or about the 14tli day of April, 1898, three certain contracts were executed to ” the American China Development Company and “ one of the contracts or concession referred to relates to certain proposed coal concessions and to the right to mine coal.” In the papers submitted to the State Department at Washington,, at a time when it was sought to have the-United States government protect the concessions, the statement was made that one of them related to a concession to mine coal. In a prospectus issued by the syndicate a statement was made that it had obtained “ mining privileges.” The resolution of. the stockholders of the American China Development Company, ratifying and approving of the agreement between the company and the Chinese government, by which the latter was to pay to it $6,750,000 as an indemnity for cancellation of the concessions, included “ mining concessions,” as did the agreement itself. The only mining concession which the development company had in China, so far as appears, was the concession negotiated by the plaintiff on the 14th of April, 1898, and contained in the instrument called the “ Coal Concession.” The plaintiff testified that after negotiating the three agreements referred to on the day last named lie made a report at a' meeting of the members of the: syndicate, which was in writing, and in which he stated that “ Coal Mining Concession is separate;,” that he turned over the original documents to the syndicate and took its treasurer’s receipt therefor; and one of the agreements thus delivered and specifically mentioned in the receipt was “ 3. Coal Concession. Original.” When the plaintiff’s testi*56mony is considered in connection with the other evidence, including the admission in the answers, I think a prima faoie case was made,, which justified the jury in finding that the defendants not only obtained a concession to mine coal, but that the same was obtained solely through the efforts of the plaintiff;
It is strenuously urged by defendants’ counsel that the plaintiff failed to prove a valid concession to mine coal. This, however, does not seem to me to be important. He obtained what the defendants and .the Chinese government considered a valid concession; otherwise it would not have been mentioned in the release given to the Chinese government and for which it, in part at least, paid such a large sum by way of indemnity for cancellation.
If I am correct in the conclusion that the jury was justified in finding that the defendants, through the efforts, of the plaintiff, obtained the coal concession, then it necessarily follows that he was entitled to recover unless his cause of action was extinguished by the settlement of the two prior actions, and the receipt and release which he then gave. The complaint in the prior action for services included the claim made in this action and had that action been prosecuted to and resulted in a judgment, it would undoubtedly have extinguished the present claim., But that action was not prosecuted to judgment. It was discontinued by consent, the defendants paying to the plaintiff $15,000 for certain things specified, which, according to the receipt given by the plaintiff, was “ for all services in' connection with the negotiation of any and all contracts and concessions for the construction of a railway in the Empire of Ohina for the Ohina Railways and Concessions Project and the American China Development Company and all claims against the Chinese Railway Syndicate or the various members thereof in connection therewith.” The release given by him was from all claims “ in connection with or arising out of the negotiation of any and all contracts and concessions for the construction of a railway in the Empire of China for the China Railways and Concessions Project, the American China Development Company and the Chinese Railway Syndicate, and the various members thereof * . * * which have been heretofore the subject of two. certain actions.” Upon the face of the receipt arid release, the court could not hold, as matter, of law, that the claim here made was included, and especially so *57when such instruments are read in connection with the correspondence between the attorneys for the respective parties which finally culminated in the settlement and the execution of those papers. From this correspondence it appears that the portion of the release quoted, and the words “in connection therewith” in the receipt, were added at plaintiff’s request, which would seem to indicate that it was his intention to limit the settlement of those actions to his claim for obtaining the railroad concession and reserve for further consideration his. claim for obtaining the coal concession. The receipt was not made conclusive, nor was the release. Both were open for explanation. “ The rule respecting the construction of releases is that, although taken most strongly against the releasor, yet general words are to be construed by their context, and if there appear a clear intent to make a limitation or exception it shall be allowed.” (Slayton v. Hemken, 91 Hun, 582; Murphy v. City of New York, 190 N. Y. 413.) What the parties intended by the receipt and release was a question of fact. It was for the jury and not for the court. (Empire State T. F. Co. v. Grant, 114 N. Y. 40.) This question, therefore, was properly submitted to the jury and its finding in plaintiff’s favor cannot be disturbed.
It is also urged that the recovery cannot be sustained for the reason that whatever services were rendered were in accordance with the promise of Senator Brice on behalf of the project before the syndicate was formed ; that the plaintiff having, as he claimed, an express contract, it was error to permit him to testify as to the value of his services-; that the alleged contract could not be enforced against the project, since it had not entered into it; that the plaintiff, being a member of the project, could not maintain an action against it for services rendered by him, and that the liability of the members of the project was limited to their subscriptions and neither the development company nor the syndicate ever agreed to pay the plaintiff, the syndicate having expressly disclaimed any liability. The argument of the appellants’ counsel in this respect is very ingenious, but it does not appear to me to be sound. It is unnecessary to determine whether plaintiff had a contract which he could enforce against the members ;of the project. That he did, in fact, render valuable services cannot be seriously disputed, and the syndicate and development company received the benefit of such *58services. The concessions which were obtained were taken in the name- of the development company, of which the plaintiff was never a stockholder. iSjeitlier was he ever a member of', the- syndicate. They knew what he was doing-and whatever was, accomplished was for their benefiti There was an implied agreement on their par,t to pay him what his -services were reasonably worth. Where one renders valuable services for another, witli his consent, the law implies, even though nothing -. is said as to compensation, . that he -shall receive: what the services are reasonably worth. This obligation the defendants recognized when they paid $15,000 for the release for the railroad co'ncéssion, which fact the jury had a right to consider dn connection with the. question whether the defendants, ever agreed to pay the plaintiff for his services in obtaining the. coal concession.
Under the facts; proved I think the plaintiff was entitled to maintain the action against the company and-the syndicate upon .a quantum. meruit and -it does not matter what, his relations with the- project were. After -a careful consideration of the record I am of the opinionvthat-the-plaintiff made out & prima facie case entitling him to recover.and the evidence is sufficient to support the, verdict. The defendants offered no evidence. They were content to-rely upon what they considered the weakness of plaintiff’s- case rather than upon any -defense which they might liave had to the cause of action alleged’..
Certain errors are alleged as to the admission of evidence and instructions given to the jury, but the conclusion thus.reached lenders it unnecessary to here, consider them, it being sufficient to say - that they would not justify a reversal of the judgment.
I am of the opinion' that -the judgment and order appealed from should be-affirmedi-