
    Otto C. Schrader, Appellant, v. Richard H. Fraenckel, Respondent.
    First Department,
    January 25, 1907.
    Master and servant — contract of employment not to be performed in one year — Statute of Frauds — when servant may recover on executed contract although, not in writing—when plaintiff suing on quantum meruit not entitled to recover percentage of profits.
    
      It seems, that although a contract for services not to be performed within one year is not in writing, the employee may recover on such contract so far as it has been executed.
    But when at trial the plaintiff amends his complaint, which was originally on . contract, so as to base his actions solely upon quantum meruit for services rendered, he cannot recover upon the contract fixing the value of services.
    Although the contract as proved in such action might have entitled the plaintiff to a certain percentage of the net profits, yet when it is f.ound as a fact that the moneys actually paid the plaintiff were full compensation for his services, there can be no recovery of a percentage of the'net profits in an action for a quantum meruit.
    
    Where it appears that the net profits of the business on which the plaintiff was to receive a percentage for his services were to be figured by charging "the plaintiff's salary as an expense, according to a recognized custom of the business, and the plaintiff accepted payments on that basis, that method of figuring the net profits must prevail".
    Houghton, J., dissented, with opinion.
    
      Appeal by the plaintiff, Otto 0. Schrader, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡New York on the 28tli day of March, 1906, upon the report of a referee dismissing the plaintiff’s complaint. ' ‘
    
      L. E. Warren, for the appellant.
    
      James Allison Kelly, for the respondent.
   Ingraham, J.:

The complaint alleges an "agreement made on or about, January 1, 1900, by which the defendant employed the plaintiff as a salesman, and agreed to pay for the services to be by him rendered fifteen per cent of the profits of said business during each and every year that the plaintiff tihould remain in the defendant’s employ, and the defendant guaranteed that the plaintiff’s fifteen per cent of said profits should not amount to less than $4,000 per annum, .and that any excess over and above the said $4,000 should be paid to the plaintiff at the end of each and every year, or at such time as the plaintiff and the defendant should terminate said agreement; that in pursuance of said agreement,, the plaintiff, on the 1st' day of January, 1900, entered into the defendant’s employ and continued in such employ under said agreement from January 1,1900, to December 31,1903 ; and that'the amount of fifteen per cent of the said net earnings was in excess of that actually paid to the plaintiff; and the complaint alleges upon information and belief that the fifteen per cent of the profits of the said business amounted to $36,000, and demanded, judgment for the sum of $20,000.

The answer denied all the allegations of the complaint and then alleged that any agreement under and" by virtue of which the plaintiff was and remained in the employ of the defendant was not to be . performed within one year from the making thereof, and that the agreement was not in writing and, therefore, was void under' the Statute of Frauds; and it was further alleged that for the services rendered by the plaintiff he had been fully paid.

On the trial the plaintiff moved to amend the complaint by alleging that the contract was made in the month of ¡November, 1899, to commence on January 1, 1900, and' to continue for a period of one year, or for a longer period,, if both the plaintiff and defendant so desired, and by inserting the allegation that the services so rendered were reasonably worth the sum of $36,000. The referee stated to counsel for the plaintiff that “ In the event, of the court allowing the amendment which lias been moved,by you, is the theory of your action one to recover the reasonable value of the services rendered by the plaintiff, or do you sue to recover the contract price as such % ” Whereupon counsel for the plaintiff stated: “ I sue to recover the reasonable value of services.” By the referee: “ And the theory of your recovery would be the quantum, meruit t ” To which the plaintiff’s counsel answered, “Yes,” and the motion to amend the complaint was then granted. The trial then proceeded, the plaintiff introducing evidence that the value of the plaintiff’s services was - from $8,000 to $12,000’ a year. The evidence given on behalf of the defendant was that the plaintiff’s services were worth from $2,000 to $3,000 a year. The plaintiff’s testimony as to the contract was that the defendant offered the plaintiff fifteen per cent of the profits of the business, the plaintiff to have the drawing account, the amount of which was not stated, and that the plaintiff stated that he would think it over; that the next day the plaintiff told the defendant that lie would accept the proposition, but the drawing account was to be $4,000, and to that the defendant agreed; that this conversation was in November, the contract to begin on the 1st of January, 1900, and that on the 1st day of January, 1900, he commenced under the contract and continued for four years. The defendant testified that he offered to give the plaintiff $3,000 per year and a chance to make more, giving him fifteen per cent of the net profits; that the plaintiff said that he would like to have the. amount of $4,000 sure, and the defendant replied, “ in a good year, you will make less if the sum is $4,000 than with $3,000, because whatever amount we fix upon will be charged to expense account.” The plaintiff said that he did not mind, that he wanted $4,000; that he would rather have $4,000 sure; that the defendant then said: “ I will, of course, make my balance sheets as I have always; as I have always done heretofore.”

The referee found that early in November, 1899, defendant, by a verbal agreement, employed plaintiff as -a salesman, his services to begin January 1, 1900, and to continue a year or longer at a salary of $4,000 per year, and so much of fifteen per cent of defendant’s net profits as might exceed that sum in any year, estimated as the defendant had always estimated• net profits in'the .past, and the plaintiffs salary to be charged to the expense account of the business in estimating net profits. He.further found that.the plaintiff commenced his employment with the defendant under his contract on the 1st day of January, 190,0, and continued .to December 31, 1903, and was paid ■ by the defendant $4,000 in the year 1-900, and $4,500 in each of the'following years, making the total amount paid for the four years’ services $17,500 ; that during these four -years the plaintiff - accepted what was paid without objection, and without a request or demand for more; that on the 1st day of January, 1904* the defendant formed a copartnership, and the plaintiff continued with the new firm át a salary of $2,500 -a year, without commission., or-share in the profits, which he accepted without effort to better his position elsewhere, and finally left the employment in this copartnership in July, 1904; that the reasonable value of the plaintiff’s services during the four years of employment by the defendant was not more than the amount actually paid to.him during that time; that fifteen per cent of the net profits of the business, made up as the defendant liad been in the habit of making up his accounts, was $14,939.04; that in making up these accounts the'defendant had charged as an expense to the business interest on the capital invested in the business the sum of. $36,418.38, fifteen ■per cent of which would have been $5,462.75; and in estimating tlie net profits the- amount of $17,500 paid to the plaintiff under this contract was also charged (as an expense,, fifteen per cent of which would be $2,625; and the plaintiff claims that these two amounts should be added to the $14,939.04 on account .of his fifteen per cent df the net profits pthat in. each of the years 1901 and 1903 the defendant made a statement to the plaintiff as to.-the net profits during, -the’year, "which showed that fifteen per cent of the net profits was something 'more than the $4,000 that plaintiff had been paid, and that the defendant stated that lie would -make the amount of the plaintiff’s interest $4,500 a-year, which was accepted by the plaintiff without objection, and that in the year 1902 the amount of ■the fifteen per cent net profits was less than $4,000; but that the ' defendant stated to him that he would hnake the amount the same as. the year before*.viz., $4,500,.which the plaintiff accepted.without objectioB ; that the methods by which these net profits had been arrived at, namely, the charge of interest on capital invested, and the amount paid the plaintiff on what he called his drawing account, was charged as a. part of the expense of the business, appeared upon both the journal and ledger of the defendant’s business during the whole period of the plaintiff’s employment and that during the whole period of plaintiff’s employment he had free and unrestrained access to and liberty to examine all of the defendant’s books of account, and he did examine them.

The referee also found that in December, 1902, S. S. Fritz owed the defendant something over §18,000, and that there was a settlement of that indebtedness made by which S. S. Fritz paid to the defendant one-half casli and one-half preferred stock of the S. S. Fritz Manufacturing Company, organized to continue the business of S. S. Fritz ; that the stock given to the defendant was of the par value of §9,000; that this company continued to deal with the defendant, and subsequently, in the year 1903, it owed the defendant over §37,000, the greater portion of which was long overdue and which the defendant was unable to collect; that he continued business with this corporation, and from time to time made collections from it, but that at the time of the trial the corporation still owed him over §23,000, which was overdue and which the defendant was unable to collect; that this stock paid one year a dividend of six per cent, but had paid no other dividends ; and in the year 1903 the defendant marked its stock off as valueless and it was not considered in estimating the amount of net profits to which the plaintiff would be entitled.

The defendant testified that he considered the stock valueless, and that he had endeavored to sell it without being able to obtain a bid of twenty-five per cent of its par value. Assuming that this stock was worth twenty-five cents on the dollar, which would be the highest price that it could be estimated at, it would be of the value of §2,250, the fifteen per cent to which the plaintiff would be entitled would be §337.50. The total amount of the net profits, therefore, according to the plaintiff’s claim, would be §14,939.04; the amount of the plaintiff’s fifteen per cent of the net profits according to the balance sheets made up by the defendant, §8,037.75 ; fifteen per cent of the amount charged for interest on the defendant’s capital invested in the business, $2,625'; fifteen, per cent of the amount paid to the plaintiff for his drawing account, and $337.50, his proportion of the value of this $9,000 stock of tlie ,S. S. Fritz Company, making in the aggregate $25,979.29, of which there has been paid $17,500.

The referee found, as a conclusion of law, that the contract between the plaintiff and the defendant was void under the Statute of Frauds; that the plaintiff having failed to establish that the services rendered by him were worth more than the amount paid to him' by the defendant, the plaintiff was not entitled to ■ recover in the action;'and that, as all the material issues in the action had been resolved in the defendant’s favor, he was entitled to judgment dismissing the complaint, and for the costs of this action.

The referee, in his opinion,- held that a contract void under the Statute of Frauds could not be considered as proof of the value of the services rendered in pursuance of such a contract; and that the contract relied upon by the plaintiff could not be considered as determining the value of the defendant’s services rendered under it; and he, therefore, disregarded the agreement and the evidence in connection therewith. But for the amendment of the complaint on the trial, I think the plaintiff would have been entitled to recover under the contract.

In Adams v. Fitzpatrick (125 N. Y. 124) the Contract was made on October 15, 1885, at the rate of $3,000 per annum, to work from that time until FToveinber 1, 1886. The plaintiff commenced the services and continued to labor in the employ of the defendants until May, 1887, when lie was discharged. The referee found that the terms of employment were from the 16th-d'ay of October, .1885, to the 1st day of November, 1886, at an agreed salary of $3,000 per year; that after the expiration of this term he continued in the employ of the defendants, rendering like services and receiving a like salary, without any other or further agreement between them as to the'hiriug or the terms thereof. In speaking of the contract the court said : “It is true that the original contract, so long as it remained exécutory, was void and unenforceable; but having been voluntarily performed by both parties, neither could' afterwards be 'heard to allege its invalidity, and it controlled the terms of service and compensation under it, as against both parties, as well as afforded an authority from which the intention of the parties in relation to a further contract could be inferred. In. other words, after execution it was to all intents valid.”

It was further held that the evidence clearly authorized a finding of a renewal of the contract for one year, and that this applies as well as to the rate of compensation as to the term of service ; but by the amendment to the complaint the action was changed from a cause of action on contract to a cause of action on quantum meruit or for the value of the plaintiff’s services. Upon the evidence the referee was justified in finding that the vylu-e of the services rendered was not in excess of the amount actually paid to him in the absence of a contract fixing the amount to be paid. If the amend" ment, itself, would not be sufficient to justify this conclusion, the express stipulation of the plaintiff’s counsel when the amendment was allowed that the action was thereupon based, not upon an express contract, but upon quantum meruit, would prevent the plaintiff from recovering upon an express or implied contract fixing the value of the services. The plaintiff thus having elected to stand upon proof of the value of the services rendered, and the referee having found that the value of the services did not exceed the amount actually paid to him, and that finding being sustained by the evidence, I do not see how we can reverse the judgment. Assuming, however, that the plaintiff is. entitled to recover under the contract as found by the referee, I do not think that he has established that he is entitled to a judgment in his favor.

We will consider the three items to which attention has been called. First, as to the charge for interest upon the capital invested in the business in determining the net. profits. The plaintiff expressly swore that it was part of the agreement that the net profits should be ascertained by the same method that he had been in the habit of ascertaining his net profits. When this contract was made the plaintiff was actually in the defendant’s employ. I think it can be fairly inferred that under such circumstances, considering the nature of the employment, the plaintiff was familiar with the methods that the defendant had adopted in ascertaining the net profits of the business from year to year, but whether he was or not, the contract was to pay the net profits ascertained by the method that had been agreed on. It appeared from the evidence, and the referee found, that these charges of interest upon the amount of capital invested in the business was the customary method by which the defendant had estimated the profits of. the business from year to year.. So that plaintiff continued in the employment under an agreement by which he was to have an interest in the .net profits,.. made up as the defendant had been in the habit of making up his accounts from year to year in ascertaining the net profits of the business; and thus, at-the end'of-the first year, when the accoutits were made up, it appeared that the net profits'of the business had been ascertained upon this method adopted by the defendant, of which the plaintiff had knowledge. . The account showing the net profits of the business was furnished to the defendant,, and he received his compensation based upon such computation. He then continued in the business upon an implied agreement that he was to receive the same compensation that he had received under the contract for the year that had been completed; but the agreement necessarily involved the method by which the net profits were to be ascertained.. At the end of the second year, when it appeared from the statement of the defendant’s business that the plaintiff would be entitled to a small sum of money, over and above the amount that he had withdrawn, not amounting to $500, and that the defendant had stated that he would allow him $500, although the amount he was entitled to receive was not as much, he acquiesced in that statement and accepted the $500, and this was repeated at the end.of ! each of the. following' years' that the plaintiff remained in the defendant’s employ. . '

It seems to me quite_clear that under these circumstances the contract that was to control for the succeeding years was based upon the contract as to the method by which" the net.'profits were to be ascertained and which had been confirmed by the actual const-rucr tion of the parties under it,.and by this contract both parties were, bound! ■

In relation to the second claim of the plaintiff, that it was improper to charge the amount actually paid to him as an expense to the business before ascertaining the amount of the net profits by the contract as sworn to by the defendant, when the parties were determining whether or not plaintiff should draw $3,000 or $4,00'0 a year, defendant stated that “ whatever amoimt we fix upon wül he charged to expense account,” and' that in reply to that the plaintiff said, “ I don’t care, I would rather have $i,000 sure,” to which the defendant assented, and the referee has found that the contract was" according to the defendant’s testimony. Here was an express agreement by which the defendant’s salary was to be charged as an expense of the business, and that what he would be entitled to be paidwould.be estimated upon the.net profits after treating the amount actually paid him as a disbursement, and this charge was also assented to by both parties. In relation to the stock of the 8. 8. Fritz Company, which the defendant charged off as a total loss in 1903, the utmost that the plaintiff ■ could claim was that it" should not be considered a total loss, but should be treated as an asset of the firm at it's actual value. The testimony is undisputed .that the defendant had tried to sell it at - twenty-five cents on the dollar and had beén unable to get a bid for that amount. It, therefore, could only be treated as an asset and the defendant required to account for it as worth twenty-five cents on the dollar. Assuming that it should be treated as an asset to that extent, the plaintiff would be entitled to be credited with the sum of $337.50 ; but as he was paid a sum largely in excess of that amount, over‘and above the net profits to which he was entitled under the contract, it did not appear that the plaintiff was entitled to recover. Although it would appear from his opinion that the referee had an erroneous view of the law to be ^applied in ascertaining the right of the plaintiff upon, the facts as found by the referee, I do not see that the referee could come to any conclusion considering the form of the action which resulted from the amendment of the complaint other than that reached by him; and as there appears to he no error in any ruling of the referee upon the trial which would' justify a reversal of the judgment, the judgment should be affirmed, with costs.

Patterson, T. J., McLaughlin and .Clabke, JJ., concurred; Houghton, J., dissented..

Houghton, J. (dissenting):

I think there should be a new trial granted in this case on the ground that the trial had before the. referee was upon a wrong theory.

The referee states by his opinion that he did not consider in any manner the agreed compensation provided by the verbal contract. Even if the contract was void by the Statute of Frauds and could 'not have been ■ • enforced as an executory contract, it having been executed by the parties the agreed compensation provided thereby was the measure of the services theretofore performed, or, at least, evidence of the price which the parties had .agreed upon and should have been taken into consideration by the referee in rendering his •judgment. (Adams v. Fitzpatrick, 125 N. Y. 127.)

The refusal of the referee to find- the third request of the plaintiff'that such a contract was entered into is sufficient indication that he tried the case upon a-wrong theory, even if his opinion cannot be used for the purpose of ascertaining that fact.

The theory of the trial having been wrong, I do not think this court can say that, upon the evidence, if'it had been properly tried the plaintiff established no cause of action. Manifestly the defendant, woiild not have been entitled to-charge interest on the capital as an expense of his business unless the plaintiff had agreed to it, ■ The referee repudiated the agreement and allowed" the defendant to charge up interest as a part of the expense of his business.

• I think, too, that with respect to the $9,000 of' stock, that the defendant did' not have the right tq charge that up as a total loss,' .inasmuch, as lie had, taken it upon bis debt and it had paid one dividend and was of some value. The fact that defendant had voluntarily paid plaintiff in excess of the $4,000 did not extinguish plaintiff’s: claim to this asset.

I have grave doubt, too, whether, under the contract as claimed by plaintiff, the $4,000- of guaranteed profits paid to the plaintiff was fairly proven to. be chargeable as an expense of the business. The agreement as claimed was not for a salary df $4,000, but was for fifteen per cent of the profits, which were guaranteed by the defendant to be at least $4,000. If fifteen per cent of the profits were less than $4,000, then, of course, the plaintiff would have no claim,for further compensation,. I think the total profits should have been ascertained without first deducting ;tli.e $4,000.

I, therefore, dissent from an affirmance of the judgment.

Judgment affirmed, with costs. Order filed. '  