
    George S. Hayes, Respondent, v. American Bridge Company, Appellant.
    First Department,
    July 8, 1908.
    Contract to share profits — trial — recovery on contract not pleaded— effect of failure to amend.
    A contract by which the plaintiff is to obtain orders for structural work for the . defendant, his compensation to depénd upon the profits, which' are to be. divided equally, provided that “in special cases where estimated profits less than 15# are added to estimated costs,” the defendant “shall be entitled to estimated profits of 7&# as its share,” and further providing that the defendant should make drawings “and execute contracts secured, provided that in no case shall the estimated net profits” of the defendant “be less than 7-J#” should be construed to mean that the plaintiff should have one-half of the actual profits realized upon contracts secured by him and accepted and performed by the defendant/ except that where contracts were accepted, the estimated profits of which were less than-fifteen per cent, the defendant should have at least seven and one-half per cent of the profit made.
    A complaint to recover a share of profits under such contract on the theory that the plaintiff is entitled to one-half of the estimated profits as distinguished from actual profits should be dismissed, and it is error to admit evidence as to the actual profits in the absence of an amendment of the complaint.
    Where seasonable objection to such proof is made and an amendment is not asked for or allowed, the plaintiff cannot recover-on a cause of action different from that pleaded.
    Appeal by the defendant, the American Bridge Company, from a judgment of the Supreme Court in favor of |he plaintiff, entered in the office of the clerk of the county of Hew York on fhe 17th day of December, 1907, upon the verdict of a jury, and also from an order enteréd in said clerk’# office on the 3d day of January, 1908, denying the defendant’s motion for a Hew trial made upon the minutes.
    
      Raynal C. Bolling, for the appellant.
    
      L. B. Treadwell, for the respondent.
   Houghton, J.:

The plaintiff entered into a written contract with the, Schultz Bridge arid Iron Company, subsequently absorbed by the defendant, whidi assumed its obligations, -to obtain, contracts for structural iron work, his compensation to depend upon profits.

The plaintiff obtained several contracts, which were accepted, completed and paid for. This action is to recover a balance of unpaid profits which plaintiff claims is due him.

Plaintiff’s theory of the action, as shown by the allegations of his complaint and the attitude of his counsel at the beginning of -the trial, was that he was entitled to one-half of the estimated profits upon each contract obtained by him, as distinguished from' actual profits realized.' When attempt was made by plaintiff to prove the estimated jirofits on these contracts, the defendant objected that, under the contract pleaded and attached to the complaint, the plaintiff was entitled only to one-half the actual profits realized from the contracts on completion. Although given opportunity to do so, the plaintiff refused to amend his complaint.

The clause of the contract especially relating to division of profits reads as follows: “ 1. Profits to be divided equally, provided but in special cases where estimated profits less than 15% are added to estimated costs, it shall be understood that the Schultz Bridge & Iron Company shall be entitled to estimated profits of as its share.”

Attached to the agreement is a schedule of prices to be charged for special shop labor on enumerated structural parts.

We are of the opinion that, taking the contract as a whole, it should be interpreted as giving the plaintiff one-half the actual profits realized upon contracts secured by him, and. accepted and performed by the defendant or its predecessor. So interpreted, the plaintiff has no right of action for estimated profits, and his complaint, founded upon that theory, should have been dismissed.

Notwithstanding the protest of the defendant in the form of proper objections and motions 'that plaintiff should be held to the allegations of his complaint as to estimated profits, and not be allowed to recover on the theory that his share of the actual profits had not all been paid to him, the trial court permitted the plaintiff to go into proof as to what in fact were the actual profits upon each of the contracts secured by him, which the defendant met by proof on its part, and the court instructed the jury that the question for them to determine was what were the actual profits and whether plaintiff had been paid in full.

Where seasonable .objection is made and amendment is not asked "for or allowed, a party cannot be permitted to recover upon a wholly different cause of action than the one pleaded. (Hill v. Weidinger, 110 App, Div. 683; Davis v. Broadalbin Knitting Co., 90 id, 567; affd., 185 N. Y. 613.)

But if we are to ignore this rule of. practice and assume that the theory of the complaint was for recovery of actual profits,, the judgment is wrong and the verdict of the jury was against the weight of evidence and should have been set aside.

What is known as the Wéchsler contract is the most important-one .obtained by plaintiff and the one upon which concededly the largest profit was made. ■ The plaintiff claims that the actual profit'. was Over $8,000, and- the same as the estimated profit, but in his figures he does not appear' to have, included the cost of erection, which was included in the contract to be performed by the company. He gives -cost of/ material and shop work at practically the :same figure as that admitted by the defendant, but the defendant proved that the cost of erection was nearly $6,000, leaving the net profit a little over $2,000, of which the plaintiff was; only entitled to. one-half at most.,' .

With respect- to this contract, as. well , as all the others which included the expense of erection, the plaintiff confessed he had no actual knowledge as to the net profit realized, and manifestly this must haye been so.for he did not superintend1 the erection or know what was done in that regard. The plaintiff’s proof, of cost, even if it included erection,, was, therefore, a matter of .estimate.’ He already has in his hands, from retained payments, $3,000 and o’yer, and áccording to the proof of the defendant no balance remains due him. As the proof stands, by the -record the verdict of the jury .in his. favor was unwarranted.'

There, is another feature of the contract, which in view of the new trial' we feel, impelled to order, it is proper, that we should-comment upon. ,

- The' defendant: insists that by the contract the company át all hazard's was entitled to seven and one-half per cent of profits on all .contracts.. We think this is an improper interpretation.

In addition to the provisions before quoted, there is in the 3d paragraph of the contract a stipulation that the company shall make all shop drawings (which were to be part of the cost), “ and execute contracts secured^ provided that in no case shall the estimated net profit of the Schultz Bridge & Iron Company be less than 7£$.”■ In another part of the contract it is provided that the plaintiff might draw not to exceed sixty per cent of the reckoned share of profits before final completion.

What seems to be a fair interpretation of the contract is that plaintiff, for his services, was entitled to recover one-half of the actual net profits realized on all contracts secured by him, except in those cases where he chose to take a contract and the company chose to accept, where the estimated net profits were less than fifteen per cent, in which event if the company accepted it and entered upon its execution it was to have at least seven and onelialf per cent, and the plaintiff was to run his chances as to his half being as great. This provision was in the nature of a check upon plaintiff against taking contracts on which the estimated profits were less than fifteen per cent. It would be a strained interpretation to say that upon a contract which both the plaintiff and the defendant estimated there would be twenty per cent of profit and ■ defendant entered into it upon that basis, that upon its transpiring that only seven and one-half per cent profit was .realized the defendant should take it all and the plaintiff have nothing. Hpon . the acceptance of such a contract where the estimated profits were more than fifteen per cent each party took the hazard of the ultimate net profit as to which, whatever it might be, there was to be an equal division. It was only in those cases, for trade or other reasons, where the estimated profit was less than fifteen per cent that the defendant was first to take out its seven and one-half per cent.

For the error, however, which we have discussed, the judgment and order must be reversed, and a new trial granted, with costs to appellant to abide the event.

Ingraham, McLaughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  