—The theory of the plaintiff’s action is that the *110contract between Charles R. Johnson and defendant was terminated March 1, 1888; that thereafter the defendant continued the use of his inventions and those of Henry Johnson,, and thus by the terms of the eighth provision of the contract became indebted to Charles R. Johnson in the sum of $1,625 for the quarter ending September 1, 1888.
The defendant’s contention is that the dismissal of Charles R. Johnson from its employment was a mere breach of the contract, and not the termination of it provided for in its seventh clause, and therefore the eighth clause of the contract was not brought into operation.
This construction of the contract has recently been upheld by this court, in-an action for another instalment of royalties under the contract brought by Charles R. Johnson against this defendant. Johnson v. Union S. & S. Co., 42 St. Rep. 337.
This construction of the contract requires a reversal of the .judgment, unless such a termination of the contract as brings its eighth clause into operation is admitted upon the pleadings. The general term held that it was admitted. In construing the pleadings it is proper to notice the construction given them by the trial court in this respect.
The allegation of the complaint is that “ the said contract was terminated by said company, and the said Charles R. Johnson was notified by the defendant to that effect, and that his services would be no longer accepted by the said defendant after said 1st day of March, 1888.”
The answer contained no denial of these allegations, but contained this allegation: “ It admits that on March 1,1888, the defendant dismissed Charles R. Johnson from its employ.”
Upon the trial the plaintiff’s counsel contended that the pleadings admitted the termination of the contract. The defendant’s counsel contended that only the termination of employment was admitted. After considerable discussion the defendant’s counsel remarked that if there was any doubt *111as to his construction of the pleadings he would move to amend at once. The plaintiff’s counsel was heard upon the motion to amend. The court disposed of the motion by this remark : “ There is nothing in this case or in the pleadings that prevents your alleging here that whatever termination there was was not the termination provided for by covenant eight of the contract.” Defendant’s counsel then said: “ I only asked for the amendment upon the assumption that there might be some other contention made.”
There was no question, apart from the allegation in the complaint that “ the said contract was terminated by said company,” but that the dismissal of Mr. Johnson was what effected the alleged termination.
The complaint apparently alleges that the termination of the contract was thus effected. The plaintiff proved upon the trial the summary and peremptory manner in which he was dismissed.
The trial court, therefore, adopted no forced or strained construction of the pleadings when it held, as it in effect did, that there was nothing in them to preclude the defendant "from insisting that the actual termination was not the one contemplated by the contract. Except for such a construction of the pleadings, justice would seem to indicate that defendant’s motion to amend the answer would have been granted.
With that construction no amendment was needed.
The defendant was permitted to insist upon the defense which the evidence disclosed. It would be unjust now upon appeal to deprive the defendant of that defense, by receding from the construction of the pleadings adopted and accepted upon the trial, and giving them a contrary construction. Especially is this so in view of the fact that the termination of the contract alleged in the complaint is as consistent with a termination which does not call the eighth clause of the contract into operation, as with the termination which does; and therefore the admission in the answer may be true *112without conceding the proposition upon which the plaintiff’s right to recover rests.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur.