So far as the payments already made to the plaintiff are concerned, the court finds no reason for requiring him to refund them. The propriety of a_ contract for five years under all the circumstances of the case is not apparent. The burden of proof rested with the plaintiff to show its fairness and propriety when he seeks to recover for time not served. He has not met that burden, and, under all the circumstances, the court is satisfied he should receive no further compensation after the notice was given terminating his services. The counterclaim for $5,000, the balance due upon the bond account, was sustained by a fair preponderance of evidence.
The judgment should, therefore, be reversed upon the law and facts, the referee discharged and a new trial granted, with costs to the appellant to abide the event.
All concurred, Betts, J., in result in opinion, except Houghton, J., dissenting and voting for an affirmance of the judgment, with a deduction, however, of the $5,000 counterclaim from the plaintiff’s recovery.