The contracts of 1893 and 1896 were separate and distinct. When the latter was executed, all of the services incident to the earning of the renewal premiums on the business written prior to September 30, 1896, under the 1893 contract, had been performed by plaintiff. It only remained to ascertain the amount of insurance which should be in force at the end of the respective years during which plaintiff’s interests under that contract continued, and to compute his commission thereon. Neither *190a failure on plaintiff’s part to perform his duty under the contract of 189.6, nor his discharge for a breach of such duty, could affect his vested rights under the 1893 contract. (Perry v. Dickerson, 85 N. Y. 345; Milage v. Woodward, 186 id. 252, 253, 254.) It is true that on the trial of the action for damages, plaintiff offered evidence of the amount of insurance he had procured during the years of the 1893 contract, but this was for the purpose of showing the amount of insurance he probably would have written under the 1896 contract if he had not been discharged, or, in other words, the value which he lost by such discharge.
Such evidence was not offered, nor was it clearly competent under the pleadings, in support of any attempt on plaintiff’s part to recover renewal commissions earned under the 1893 contract. There was no such issue in the case. But if the issues upon the former judgment were equivocal, it was defendant’s duty to prove facts bringing its case clearly within the actual issues.
The judgment and order should be reversed ■ and a new trial ordered, with costs to appellant to abide event.
Judgment and order affirmed, with costs.