i . The defendant having put it beyond his power to perform the contract according to its terms, the plaintiff was entitled to recover the value of his services over and above the amount he had received under the contract.
2. The terms of the contract, as alleged in the complaint, required the defendant to devote his personal services-to the business of the steamer Allen. As the bill of exceptions does not purport to set forth the substance of all the-testimony, the verdict is conclusive that the contract was such as the plaintiff alleged. Evidence therefore was admissible which tended to show that the defendant’s conduct in-devoting his services to another steamer decreased the earnings of the Allen, and thereby prevented the plaintiff from earning the interest in the Allen called for by the contract.
No other questions are argued by counsel, and there being no error as to these, the judgment is affirmed.