Of the several rulings made at the trial of this case, three only seem to be open for revision on the exceptions.
1. The first relates to the right of the plaintiff to recover in this action the amount of his share of the earnings which had accrued under his contract with the defendants prior to his removal by them from the command of the vessel. The action is brought for a breach of an entire contract for services. The plaintiff has a right to recover as damages the amount which is lawfully due to him under the stipulations by which his compensation for these services was to be regulated and governed. This includes the wages which he had earned previous to his removal, as well as those which he was prevented from earning by his wrongful discharge. The breach of the contract by the defendants has created only one cause of action in favor of the plaintiff. His compensation for this breach necessarily embraces all that he is entitled to recover under the contract. Indeed his right to recover anything, as well that which was earned before as that 'which would have been earned if he had not been discharged, depends on the question whether he has performed his part of the contract. A party cannot sever a claim for damages arising under one contract so as to make two distinct and substantive causes of action. We are therefore all of opinion that the sum due to the plaintiff prior to his discharge, when it shall have been ascertained by an assessor, ought to be added to the amount of the verdict.
*1422. We think it equally clear that the plaintiff is entitled tc recover in this action his share or proportion of the future profits or earnings of the vessel after his discharge by the defendants. These constitute a valid claim for damages, because the parties have expressly stipulated that profits should be the basis on which a portion of the plaintiff’s compensation for services should be reckoned. These earnings or profits were therefore within the direct contemplation of the parties, when the contract was entered into. They are undoubtedly in their nature contingent and speculative and difficult of estimation ; but, being made by express agreement of the parties of the essence of the contract, we do not see how they can be excluded in ascertaining the compensation to which the plaintiff is entitled. Would it be a good bar to a claim for damages for breach of articles of copartnership, that the profits of the contemplated business were uncertain, contingent and difficult of proof, and could it be held for this reason that no recovery could be had in case of a breach of such a contract ? Or in an action on a policy of insurance on profits, would it be a valid defence in the event of loss to say that no damages could be claimed or proved because the subject of insurance was merely speculative, and the data on which the profits must be calculated were necessarily inadequate and insufficient to constitute a safe basis on which to rest a claim for indemnity ? The answer is, that in such cases the parties, having by their contract adopted a contingent, uncertain and specu lative measure of damages, must abide by it, and courts and juries must approximate as nearly as possible to the truth in endeavoring to ascertain the amount which a party may be entitled to recover on such a contract in the event of a breach. If this is not the rule of law, we do not see that there is any alternative short of declaring that where parties negotiate for comoensation or indemnity in the form of an agreement for profits or a share of them, no recovery can be had on such a contract in a court of law — a proposition which is manifestly absurd.
There are doubtless many cases where no claim for a loss of profits can properly constitute an element of damage in or. action for breach of a contract. These however are cases ia *143which there was no stipulation for compensation by a share of the profits, and where they were not within the contemplation of the parties, and did not form a natural, necessary or proximate result of a breach of the contract declared on. Fox v. Harding, 7 Cush. 516. But these cases are no authority for the broad proposition that in no case whatever can profits be included in estimating damages for a breach of a contract. In Johnson v. Arnold, 2 Cush. 46, cited by the defendants’ counsel, the court decided only that, in an action for breach of contract for services, by which it was agreed that a party should be compensated by a share of the profits, the damages were not to be limited exclusively to the loss of profits, but might include other elements, if satisfactorily proved. In Brown v. Smith, 12 Cush. 366, the action was against the master of a whaling vessel for misconduct and mismanagement, by which the voyage was broken up. It was held that no conjectural or possible profits of the voyage could be taken into consideration in estimating the damages. This decision stands on the ground that there were no stipulations in the contract concerning profits, nor were they, so far as appeared, in contemplation of the parties when the contract was made, nor a necessary or proximate consequence of its breach. Besides ; it was only a claim for conjectural or possible profits which was rejected by the court in that case, and not profits which were capable of being proved by competent evidence, as in the case at bar.
3. The remaining ground of exception is to the instruction given to the jury that, if the defendants had been injured by any negligence of the plaintiff in the conduct of the voyage, not sufficient to justify his removal and prevent him from maintaining his action, then damages might be recouped or deducted from the damages, if any, which they should find that the plaintiff had sustained by his removal. We doubt very much the correctness of this instruction. It seems to involve the proposition that the plaintiff could recover damages for a breach of the contract, although he ha j previously been guilty of violating his part of the agreement. But the instruction was given at the express request of the defendants’ counsel. It was the rule of *144law by which he wished the rights of his clients to be tried and determined. His request having been complied with, and the role of law adopted in conformity therewith, he must now be held to be estopped from objecting to it. As the plaintiff makes no objection to the ruling, and is willing to take the smaller sum found by the jury after making the deduction for which the counsel for the defendants asked, we are of opinion that the verdict must stand affirmed for that sum.
Exceptions overruled.