This action is brought to recover renewal commissions on policies of fire insurance obtained by the plaintiff as agent of the defendant. On the 13th day of February, 1880, the president of the Brooklyn *275Fire Insurance Company made a proposition, in writing, to the plaintiff, who was then in the defendant’s service, that he should continue in the employment of the company as agent upon certain terms as to salary and compensation therein specified. One of the terms of the offer was in the following words.: “ The company agree likewise to give you regular renewal commissions on the policies obtained by you when the premiums shall have been paid to the company.” The plaintiff accepted the proposition, and his employment, under the contract thus made, continued until about the 31st day of December, 1880, when, as the referee has found, at the request of the defendant, the contract terminated by the agreement or consent of the parties.
No question arises here as to any portion of the contract, except that which has already been quoted relating to renewal commissions. A renewal commission, according to the uncontradicted testimony of the president of the defendant corporation, is the commission on premiums paid on a policy subsequent to the first year’s payments. If a man pays $100 a year premium, the second $100 and all subsequent payments are called renewals, and the commissions on such payments are renewal commissions. It is obvious that such commissions can never become due until the second year of the life of a policy.
The plaintiff sues for renewal commissions on premiums paid to the defendant upon policies obtained by him before February 13, 1880, and also during the existence of the contract of that date. The defendant contended on the trial that the phrase “ policies obtained by you,” in that part of the agreement concerning renewal commissions, meant only such policies as the plaintiff had procured to be issued prior to the execution of the contract; but the referee correctly rejected this construction, and held that the commissions were plainly to be paid upon policies obtained, as he says, under the contract, that is to say, between February 13 and December 31, 1880. That they were payable upon policies taken out through the agency of the plaintiff prior to the execution of the contract, appears to have been assumed without question by both parties, for renewal commissions on such earlier policies seem to have been paid to the plaintiff by the defendant during 1880, while the contract was in full force and effect, and the defendant has insisted throughout the case, and now insists, that the contract contemplated no other or later policies whatsoever.
*276During the existence of the contract the plaintiff’s right to commissions on premiums received by the company, after the premium for the first year had been fully paid, became fixed as soon as the plaintiff caused a policy to be taken out. The subsequent abrogation of the contract of employment by mutual consent did not deprive him of this right. So far as the contract remained executory the agreement to terminate it destroyed it as to both parties, but to this extent it had been executed by the plaintiff, and the mutual abandonment of the contract did not take away his right to the renewal commissions already earned any more than the expiration of the contract by the efflux of time would have done, at the end of a year from the date of the agreement. In an action for goods sold and delivered, the plea that the sale and delivery were made under a contract which has subsequently been wholly annulled and rescinded by both parties constitutes no defense. (Edwards v. Chapman, 1 Mees. & W., 231.) So far as the policies are concerned upon which the plaintiff claims renewal premiums, the insurance company has derived all the benefit which was intended under the contract, and the agreement to rescind does not bar the agent from recovering his just compensation.
In the case of Shaw v. Home Life Insurance Company (49 N. Y., 681) cited by the appellant, the contract differed materially from that under consideration here, as appears from an examination of the record itself. (Court of Appeals Cases, 1872.) There the agreement provided for the payment of commissions after the termination of the contract, only in the eveut that the agent himself should continue thereafter to perform the services necessary to procure the payment of the renewed premiums. In other words, the right to commissions on renewal premiums was made expressly dependant on the rendition of future services; and as the plaintiff voluntarily surrendered the right to perform these, it was held that he could not recover. There is no such element, however, in the case at bar. As to the charge that the plaintiff failed to perform his duties under the contract, the testimony is conflicting, but the referee’s conclusion in the plaintiff’s favor is amply sustained by the proof.
The judgment should be affirmed with costs.
Yan Brunt, P. J., concurred.