I concur with Mr. Justice McLaughlin in his dissent. The plaintiff was employed by the defendant under a written agreement which carefully prescribed his duties in relation to the defendant corporation, and agreed that he would “duringsaid period devote himself exclusively to the discharge of such duties, and will not during said term accept, engage in or enter upon any other business or employment whatsoever except as hereinafter specified.” It further provided that it was an essential condition of the agreement that the manager would not at any time during the term thereof, except as thereby expressly permitted, directly or indirectly examine, investigate, advise, consult or report upon any mining, smelting or refining property, works, business or proposition or with respect to any business of like character; that he would not be or become interested in or connected with any person, partnership or corporation engaged in any such or similar business or owning or operating any such property either as principal, agent, employee, officer, director or stockholder in any such business or company. And he further expressly agreed that “no covenant, condition or provision of this agreement can or shall for any purpose be waived, altered, modified or amended, unless the same be in writing subscribed by the parties hereto, and they hereby covenant that they will not urge or claim any such waiver, alteration, modification or amendment unless the same be evidenced by such writing.” Now, the plaintiff entered into this contract receiving a large salary, fully understanding its purport, and *879while the contract was in force and he was acting for the corporation in relation to this Alaska property he became interested in the purchase of property the purchase of which was being considered by his employer, under an agreement that he was to have a share in the profits of the purchase of the mining claims. I do not understand it to be seriously disputed that he would not be entitled to this share of the profits realized from the subsequent sale of the mining claims to the defendant corporation, his employer, unless he received the authorization from his employer which was contemplated by this contract. He never received such authorization in writing, and, therefore, under the terms of the contract he was not entitled to receive any share of the profits realized on the subsequent sale of the mining claims to the defendant corporation.
But it is claimed that the corporation waived this provision in the contract, and that, as I understand it, is the basis upon which the plaintiff claims the right to receive this share of the profits. But assuming that the officers of the defendant had knowledge at some time after the purchase of these mining claims by the defendant Perry that the plaintiff was to receive a share of the profits, I can see no justification for any claim of waiver arising from that knowledge. It is not pretended that the plaintiff did anything after the so-called waiver. He advanced nothing on the faith of it. He expressly agreed that there should be no waiver except in writing signed by the parties to the original agreement, and no such writing was ever executed. I can see no reason why the terms of such an agreement should not be enforced; or where a party expressly agrees that there shall be no waiver except in writing why he should be allowed to prevent the enforcement of his contract because of a verbal waiver, or one implied from facts, when no question of estoppel is presented, and where the party has not been induced to enter into a transaction by some act of the other party which would make it unequitable or estop the other party from insisting upon the original agreement. It seems to me a clear case of an agent, having bound himself by the most stringent provision to be faithful and honest in his relations to his principal, attempting to procure, an advantage. in a transaction in which he. represented his principal, and where his *880principal relied upon the faithful discharge of the obligation that the agent assumed.
I, therefore, concur in my brother McLaughlin’s opinion.
McLaughlin, J., concurred.
Judgment reversed, with costs, • and judgment ordered in favor of plaintiff, as indicated in opinion, with costs and allowance as against the exploration company. Order to be settled on notice.