(dissenting, in part):
I concur with Mr. Justice McLaughlin in the. construction of this agreement so far as to hold that the right of the plaintiff to receive-the $5,000 a year mentioned in the agreement depended upon profits received in ■ each year, and that in any year in which the profits did not exceed $5,000 plaintiff 'would not be entitled to a greater amount than the actual profits for that year. I do not, however, agree that the defendants are entitled to an affirmative judgment against the plaintiff for any sum of money paid during a year in which there were no profits. The parties being of full age were justified in making such a contract as they pleased. There was no provision in this contract which contemplated a repayment of any amount paid under the contract to the plaintiff by the defendants. What the defendants agreed to do was to pay the sum of $5,000 per annum or such less amount as would equal the profits of the business “in equal monthly installments on the first day of each and every month of each and ■ every year duiing the life of said Courtlandt Babcock [plaintiff].” If at the commencement of the year there were no profits this monthly pay-nient could not be enforced, and the defendants would have been quite justified in refusing to make any payment until the profits had' been réceived. On the other hand they could make payments anticipating the existence of profits, but such payments would be voluntary payments which, as I view it, *207imposed no obligation upon the plaintiff.to repay.- If at the commencement of- any one year no profits were realized the defendants would have been justified in refusing to make the payments. The whole of the $5,000, however, would have been- due'some time during the year if. profits, to that amount were realized. On .the other hand, if profits had been realized in the first half of the year upon which the defendants had paid the stipulated monthly installment, the mere fact that subsequent losses reduced those profits so that there was not a total profit for the year of $5,000, there is certainly nothing in the agreement as I read it that authorized the defendants to recover from the plaintiff the sums of money that they had paid to him based upon an assumption that there were profits to which he was.entitled.
I think, therefore, that the defendants were entitled to a judgment on the submission but without an affirmative judgment against the plaintiff.
Miller, J., concurred.
Judgment directed for defendants against plaintiff for $3,333.28 and interest ‘ from November 1, 1909, with costs. Order to be settled on notice.