Restatement of the case in the opinion. If the notice of 22d February is susceptible of a construction limiting the plaintiff's duties to adventures previously commenced, it is at least equally capable of a construction binding him to manage all the defendant's business on the terms of the contract; and as the plaintiff might have avoided the ambiguity, this latter construction should be adopted. 2. The sale of so much of the Erving's outward cargo as was made after 31st December, was not a service for which the plaintiff can claim any compensation, beyond what was due to the firm of which he had become a member. Alsop & Co. had accepted a consignment of the cargo, and this acceptance entitled the defendant to the full services of every partner in the house. If the plaintiff, after becoming a partner, had the exclusive charge of these sales, it was only as attending to that branch of business of the house; he is not shown to have rendered any services in disposing of that part of the cargo which was sold at Valparaiso, which ne did not perform in reference to other consignments from other parties. But, however special or valuable his services may have been, they did not exceed his duties under his newly assumed office of consignee, and were compensated by the large commission paid to Alsop & Co., in which he participated. To assume that he was acting in a merely personal capacity, as agent of Goddard, would be to suppose that he was acting contrary to his letter of 22d February, and contrary to his obligations to his new house. II. The court took from the jury the decision of the point whether a contract different from the old one existed. The matter depended on a correspondence, and on various facts of whose effect the jury was the judge. Mr. W. M. Evarts, contra. Mr. Justice CLIFFORD delivered the opinion of the court. Compensation for services rendered by the plaintiff, as agent for the defendant in conducting a certain commercial adventure at his request and for his benefit, is claimed by Restatement of the case in the opinion. the plaintiff in the present suit, which is an action of assumpsit for the value of the services rendered. Prior services of like kind, in transactions of a similar character, had been rendered by the plaintiff for the same defendant, to which, though not embraced in this suit, and to the litigation which grew out of the same, it becomes necessary to advert in order to a clear understanding of the present controversy. Those prior transactions had their origin in two written agreements between the parties. By the first agreement, dated June 24th, 1843, the plaintiff engaged, among other things, to proceed at once to Valparaiso, and there to remain for the term of five years, and to devote himself, for the whole time, exclusively to the business of the other party, such as the sale and purchase of cargoes, collecting freightmoneys, procuring return freights, eliciting orders for the purchase and shipment of goods, effecting the sale of vessels, and collecting and forwarding all such information as he could obtain respecting the trade. In consideration of which the defendant engaged that he, the plaintiff, shall, at the expiration of five years, be entitled to one-tenth of the net profits of his business in that trade, subject to certain deductions for interest, cost, and expenses, as therein specified. Under that agreement the plaintiff proceeded to Valparaiso, where he continued to reside during the period prescribed, and well and truly performed all things required in the agreement. Having performed the agreement, the plaintiff returned to Boston, where the defendant resided, and on the 7th of May, 1849, they entered into the second agreement, in which the plaintiff engaged to proceed at once to the west coast of South America, and to devote his whole time in those parts, as also in Mexico and California, exclusively to the management of the business of the defendant in those countries, such as the sale and purchase of merchandise, or any other property, collecting freight-moneys, procuring freights and consignments of goods, eliciting orders for the purchase and shipment of property, investing money, drawing and negotiating bills of exchange, and for Restatement of the case in the opinion. warding all such information as he could obtain respecting the trade. In consideration of which the defendant engaged that he, the plaintiff, "shall, on his return, be entitled to one-fourth of the net profits of his business in that trade, that he (the plaintiff) shall have conducted to completion," subject to certain deductions for interest, and all costs and expenses incurred, both at home and abroad, in prosecuting the business, including port charges and the expense of sailing and keeping in repair the vessels employed, the defendant having the right to purchase, charter, freight, and sell. the vessels designed for the trade at his option, charging or. crediting in the general account the profit or loss in every such transaction. What funds the plaintiff had, less two thousand dollars, he engaged to leave in the hands of the defendant, which he agreed not to abstract, nor any portion of the profits, "until he shall see fit to withdraw from the present arrangement, which he is at liberty to do at any time by giving the defendant so much notice that any voyage he may have commenced, previous to the receipt of such advice, shall receive the full benefit of all of the plaintiff's service to its final accomplishment, and not otherwise." Pursuant to the agreement the plaintiff proceeded without delay to the place designated, and conducted the described business until the twenty-second of February of the next year, when he gave the required notice to take effect at the close of the year; and that on the first of January of the succeeding year he should join the house of Alsop & Co.; and he asked for an account. On the thirteenth of April of the same year, the defendant acknowledged the receipt of the letter written by the plaintiff, giving the required notice, approving the decision the plaintiff had made to join that house, and promised to comply with his request "as speedily as possible." Briefly described, the general mode of conducting the business under each agreement was by adventures and shipments of goods, procured at Boston by the defendant and consigned to the plaintiff, by whom the merchandise was sold and the proceeds invested in other merchandise which Restatement of the case in the opinion. was consigned to the defendant, who sold the return cargoes, and he kept the books and vouchers, showing the exact profit or loss on each adventure. Large profits were earned in the business, and at the expiration of the period limited for the continuance of the agreement, a large sum was due to the plaintiff in the hands of the defendant, where it had been allowed to remain without his rendering any account. Repeated requests for an account having failed to secure one, the present plaintiff, on the first day of May, 1857, instituted a suit in equity in the Circuit Court for the District of Massachusetts, and the cause having proceeded to final hearing, and the court having entered a decretal order in favor of the plaintiff, sent the cause to a master to ascertain what the plaintiff was entitled to recover. He made a report in which he allowed, among other matters, the claim embraced in the present suit. Ten exceptions were filed by the present defendant to that report, but it will not be necessary to refer to any one of them, except the tenth, which is substantially as follows: For that the said master has allowed the complainant one-fourth of the profits made by the respondent in the use and employment of a vessel called the Harriet Erving and her cargo during her third voyage, which was not sought to be recovered by the complainant in his original or amended bill, nor was the vessel or cargo or the profits resulting therefrom during the said voyage, embraced in the said second agreement, nor in any contract or agreement made by the respondent with the complainant, but were solely and exclusively at the profit and loss of the respondent. Two of the objections taken to the finding of the master in respect to that voyage, as expressed in that exception, were sustained by the Circuit Court: (1.) That the voyage was not within the written agreement, as it was not commenced when the plaintiff gave the notice of his intention to withdraw from the arrangement nor when the defendant, on the thirteenth of April following, acknowledged the receipt of the notice and expressed his approval of the step taken by the plaintiff. (2.) That the proofs were not sufficient to Restatement of the case in the opinion. warrant the conclusion that the parties ever agreed that this voyage should be settled and adjusted within the principles of the written agreement; and if they did so agree, that there was no proper allegation in the bill to support such a decree. Governed by those views the Circuit Court sustained the exception to the report allowing the claim, and on appeal to this court the decree of the Circuit Court sustaining the same was affirmed.* Payment of the claim being refused, the plaintiff, on the fourteenth of August, 1862, instituted the present suit in the Court of Common Pleas for the city and county of New York, where he resides, to recover compensation for his services rendered in respect to that voyage, and the defendaut, being a citizen of the State of Massachusetts, removed the cause into the Circuit Court for the first-named district. By the record it appears that the declaration contained a count on a special agreement to pay one-fourth of the profits earned by the ship on the voyage not adjusted in the prior suit, but it will not be necessary to remark upon that count, as the court ruled and instructed the jury that the plaintiff could not recover under that count, nor for any part of the profits of the voyage. Apart from that the declaration also contained four other counts, of which the second and third alleged a promise to pay a reasonable compensation for the services rendered, and the fourth and fifth were the common counts of indebitatus assumpsit, and quantum meruit. Service was made and the defendant appeared and pleaded the general issue, and gave notice that he would give evidence of a former recovery by the plaintiff against the defendant in the said suit in equity in the Circuit Court, founded upon the written agreement, and that the services of the plaintiff, if any, as claimed in the suit, were rendered under the same agreement. He also gave notice that he would give evidence to prove that the alleged causes of action did not accrue within six years next before the commencement of the action. *Foster v. Goddard, 1 Clifford, 158, 183; Same Case, 1 Black, 506-514. |