
    
      THOMPSON vs. LINTON & AL.
    
    Appeal from the court of the first district.
    If, in a contract, certain advantages be stipulated in favor of a third person, jn considera him^erform-tfel ma/ail m[nd^prrovi. fr^urecHn reí ces^írior r'to change.
   Mathews J.

delivered the opinion of the court. This suit is brought against certain ° pilots, resident at the Balize, on a contract or agreement entered into amongst themselves, ’n relation to the employment of boats in their business of piloting; by which they stipulated that the boats or vessels employed should draw 2-5ths of all money earned, and 3-5ths ^ balance was to be shared by them the pilots. In this contract they agree to make the plaintiff their agent, to collect debts for them, allowing a commission of 5 per cent, to him on collections, 2 1-2 per cent, for money advanced, and 1 1-2 for all purchases .made in produce for the boats, which were to be used as above stated. The plaintiff alleges that »*■ t • i ¾ ti i . i Mr. Linton and one Holman, purchased a schooner called the Eliza, in partnership, which was for some time used in the piloting business, but his partners had failed to account with him, or pay any of the profits which were derived from the use of the vessel, and prayed a dissolution of the partnership and final settlement of accounts. He afterwards dismissed his suit so far as it related to Hollman.

In this mixed state of a suit, against the pilots to compel them to comply with the engagements they had entered into, (with each other,) for the benefit of the plaintiff, and also to compel Linton to pay over to him as part owner of the boat, his share of the 2-5ths earned and to dissolve the partnership, the cause was submitted to a jury urthe court below? who found a verdict for the plaintifffor $1500 ; an appeal was taken and the judgment of the district court was reversed, on account of the plaintiff having blended two distinct causes of action, against persons owing on different claims. The case was remanded for a new trial and previous to entering thereon, the plaintiff discontinued so much of his petition, as prays for a dissolution of the partnership and sale of the schooner therein mentioned» the cause seems to have been proceeded in exclusively in relation to his claim for damages occasioned by a breach of the contract made and entered into between the pilots themselves, in which they stipulated to employ him as their agent; and to recover his third part of the 2-5ths which was earned by the Eliza, as being owner to that extent: also the amount advanced to and paid for the benefit of the defendants.

The plaintiff was not a party directly to the eontractunder which he claims the advantages which might have resulted from his services in collecting debts, advancing money and purchasing provisions. It was a stipulation made in his favor in consideration of services to have been by him performed; but in its origin wholly voluntary on the part of the defendants, who had a right to change their will ⅛ this respect, so as not to injure the person employed by them, in any thing which had been done by him previous to such change.

As a company, they are answerable to him for his proportion of the money earned by the use of the schooner Eliza, being l-3d of 2-5ths, and also for money advanced to them and articles furnished, &«.

In the last trial in the district court, the cause was submitted to a jury, who found a Verdict for the defendants, on which judgment Was rendered and the plaintiff appealed.

The decision of the case depends exclusively on questions of fact, as supported by the evidence. The appellant relies principally on the testimony, drawn from Brower, one of the defendants, by interrogatories, to shew that the jury erred. In support of the vefdict the ap-pellees rely on that of Copping, a witness on their part. This witness swears that he paid to the plaintiff $ 154,50; and that the sum thus 'X paid, was in full for his share of the profits in the schooner Eliza, which had accrued up to the 7th ofSeptember, 1825.

Brower’s testimony does not establish any certain amount, as owing by the defendants to the plaintiff; it is wholly indefinite both as to what may be due on ^account of the gains of the Eliza, and in consequence of purchases and advances made for the use of the appellees. ,

The record furnishes no evidence by which it can be clearly ascertained that the jury have erred in their conclusion on the facts of the case.

Pierce for the plaintiff, Presión for the defendants.

It is therefore ordered, adjudged and de« ’ J ° that the judgment of the district court ag'irme(jj wjth COstS.  