According to the terms of the agreement of April 27, 1893, J. H. Dilworth & Co. were bound to pay plaintiff, “ at the close of each day, twelve and one half per cent of said gross *267receipts for such day.” It appears to have been so understood by the parties thereto, and, for more than two months, settlements were accordingly made upon that basis. The construction now contended for by defendant was an after-thought, unwarranted by the language employed in the agreement. There was therefore no error in sustaining the construction contended for by plaintiff, and entering judgment in his favor for want of a sufficient affidavit of defence.
Judgment affirmed.