It appears, by the contract between the parties, of the 21st of February, 1798, that 10,000 dollars were stipulated to be paid to the defendant, W. I. Robinson, in lieu of all compensation and commission, for his services as supercargo upon the voyage, and for the services of him, and his partner, Sylvester Robinson, for the management and sale of the -return cargo. It further appears, that the defendant, W. I. Robinson, caused 8,000 dollars of this sum to be nsured, and that, upon the loss of the voyage, he sued the underwriters, and recovered. His right of recovery depend*164ed on the question, whether he was entitled to demand of the plaintiffs the sum stipulated by the contract; and it was decided, in the first instance, by the supreme court, and on error, by the court in the last resort, (2 Caines’ Rep. 357. 1 Johns. Rep. 616.,) that he had no remedy upon the contract with the plaintiffs, because the money was made payable out of a specified fund, and that fund depended on a contingency which had never happened. We are, then, to consider it as the settled law of this case, that the defendants cannot set up a claim under the contract; and the point then is, whether they are entitled to a quantum meruit for their services, or for any part thereof, precisely as if no agreement had ever been made.
It is evident, from the variation in the accounts, rendered by the defendant, W. L Robinson, that he rested his demand for compensation, for his services at St. Kitts, entirely upon his contract. In his first account, (exhibit No. 5,) he charges the plaintiffs with the 10,000 dollars. This was prior to his recovery against the insurers, and w hen his claim against them was resisted, on the ground that he had not lost his claim under the contract. Afterwards, in his account, (exhibit No. 6,) and which was exhibited after the recovery against the underwriters, he omits this charge altogether; and this fact is of great force to show the defendant’s own sense of the foundation of his claim. But without considering this waiver as absolutely binding, I cannot find any just principle upon which the claim for commissions, set up by the defendants, can be admitted.
It seems to be inconsistent with the object and intention of the parties, in making the contract, to allow the defendants to recover on a quantum meruit, merely because the contingency had not occurred on which the extraordinary and specific allowance for the same services was made to depend. This would be giving the defendants an undue advantage, not consistent with equality and justice between «he parties.- The benefit of the contingency may have *165been an inducement for the allowance. The parties to the contract were joint owners of the ship and cargo ; and the defendant, W. L Robinson, in his character of part owner, was not entitled to charge for his services, except up • _ on the ground of the special agreement, I know of no case which entitles one partner to such an allowance against another, without an agreement. The case of Thornton v. Proctor, (1 Anst. 94.,) evidently proceeds upon this principle. Each joint owner, in taking care of the joint property, is taking care of his own interest, and the law never undertakes to. measure and settle, between partners, their various and unequal services bestowed on the joint business» This must be left to be regulated by contract. But the defendant, W. L Robinson, bestowed his services as supercargo, in which trust and character he had been placed by the whole concern, and, in that character, he can look only to the agreement. His duty, as supercargo, continued at St. Kitts, and until the cargo, entrusted to his charge, or the proceeds of it, had arrived at .Mezo- York ; and for the purpose of compensation, the sales at Si. Kitts may be considered as substituted for the sales at Mew-York, and they were to be made free of commission.
This case must, therefore, be referred to a master, to take and state an account between the parties, under the directions contained in the decretal order of the 14th of October last, except that, in addition to the claims of the defendants, or either of them, disallowed by that order, the claim for commissions on the sale and disposition of the return cargo of the ship Mary, at Si. Christophers, be also disallowedand that all further directions be reserved until the coming in of the master’s report.
Decree accordingly.