
    William W. Allcott vs. The Boston Steam Flour Mill Company.
    A. agreed to serve a flour company as the superintendent of their mill, for a fixed annual salary, “ and five per cent on the net profits, after deducting the expenses of the company, and six per cent on the capital stock.” It was further agreed between the parties, that “ the percentage on the profits of the company shall be made up and paid accordingly once in each year, to commence when the books of the treasurer shall be made up to show the annual state of the company.” A. entered the service of the company in July, 1846, and the mill was not fully in operation till January, 1847. In March, 1847, at an annual meeting of the stockholders of the company, a statement, which had been made up by the president and one of the treasurer’s clerks, was exhibited, showing the assets and liabilities of the company, a statement of what wheat and corn had been bought and ground, and what had been sold. A. having brought an action for his percentage on the profits of the company, as appearing by such statement, it was held, that he could not recover, inasmuch as such statement was a mere “ estimate,” and was not such a making up of the books of the company as was contemplated by the agreement; and that A.’s percentage was intended by the agreement to be calculated upon the profits of an entire year.
    This was an action of covenant, alleging that the plaintiff agreed to serve the defendants, as “ superintendent of their mill and storehouses,” and the defendants covenanted to pay him, “ as salary, the sum of twenty-five hundred dollars per annum, payable quarter yearly, and five per centum on the net profits of the company, after deducting the expenses of the company, and six per centum on the capital stock.” The agreement contained the following clause : — ■
    “ That the percentage on the profits of the company shall be made up and paid accordingly once in each year, to commence when the books of the treasurer shall be made up to show the annual state of the company.”
    The case was referred to an assessor, who reported that there was due the plaintiff as salary, the sum of $555.32.
    A.s a second breach of covenant, the plaintiff specified, that the corporation had not paid him five per cent on the net profits of the business of the corporation.
    
      On this point the assessor reported “that the plaintiff entered the employment of the defendants, as superintendent of their mill and storehouses, in July, 1846, and continued therein until the early part of January, 1848, when he was dismissed; that the mill was in operation as early as October, 1846, though not in full operation till the 13th day of January, 1847; that, by the contract under which the plaintiff had entered the defendants’ employment, he was, in addition to a salary of $2,500 per annum, payable quarter yearly, to receive five per cent, on the net profits of the company, after deducting the expenses of the company, and six per cent, on the capital stock,, and, in and by such contract, it was further stipulated that the. percentage on the profits of the company should be made up and paid once in each year, to commence when the books of the treasurer should be made up to show the annual state of the company.
    Richard Soule, a witness called by the plaintiff, testified as follows: I was a director of the Boston Steam Flour Mill Company, at the annual meeting in 1847. I was present at the annual meeting, or at some adjournment of it. Mr. Brigham was treasurer and agent at that time. I heard a statement by Mr. Brigham, at that meeting, in regard to the business of the company. There was a paper before the stockholders at the time. I can’t say whether Mr. Brigham presented it as agent or treasurer. The stockholders relied on him. I heard the statement made by the treasurer at the annual meeting. 1 can’t say whether it was at a directors’ or stockholders’ meeting; my impression is that it was a stockholders’ meeting. I have no distinct recollection of details. The result was cheering and gratifying to stockln lders. My impression is that there was a gain of $15,000; I can’t be exact. It was in the neighborhood of that; I can’t say whether more or less. I think the paper contained the amount of purchases and sales, but no importance was attached to this ; the result is what we looked for. I can’t say the $15,000 was before or after interest was deducted.
    On cross-examination, the witness said: I can’t say whether an interest account was stated. I did not investigate very 
      critically. I don’t know whether an interest account was brought in; have no recollection about it. There was a considerable amount of wheat and flour on hand, but I don’t recollect the sum at which it was taken. The statement by Mr. Brigham I understood to be an estimate. 1 supposed it to be an estimate. I supposed it to be for the year ending with the annual meeting, but it was for less than a year —■ about six months. "We commenced operations the preceding fall.
    E. D. Brigham, called by the defendants, testified as follows : I was treasurer of the corporation in March, 1847. There was a memorandum made up by the president and my clerk, showing, first, the assets, then a statement of what wheat and corn had been bought and ground, and what had been sold. I now produce it. It is paper E. Paper F is in the handwriting of Mr. Allcott, and paper E is made up from paper F. This was not an annual statement. I made no report to the stockholders. The paper was made up by the president and my clerk, to show how the corporation stood. I think they ground a little in October, 1846, and, as soon as we got to work, the stockholders were invited over. I think this was in November. We were in full operation January 13, 1847. I made up an annual statement in March, 1848. By the books, the debit of profit and loss was $18,372.67, on the 29th of February, 1848, as per statement made up for the annual meeting in March, 1848. To show this result, interest was not made up, nor was it in the statement of the operations of the company, in March, 1847, though a round sum was put down for interest in the assets.
    On cross-examination, the witness testified: The profit and loss account was made up to the end of April, 1847, and again in October, 1847. I have no recollection of any annual meeting between 1847 and 1848, and no recollection of exhibiting the account to stockholders. Paper E was produced, I think, by the president, and was read, or the substance of it. The president and my clerk made it up. I may have helped ; I don’t recollect. The president had nothing to do with the financial concerns of the company, by which I mean that all the money passed through my hands. The receipts and payments were by me. There is nothing to show the condition at that time but papers E and F.
    The annual meeting of the company was on the first Monday of March, 1847, when paper E was exhibited to the stockholders, and there was no other annual meeting of' the company till March, 1848, the time provided by the by-laws. No evidence was offered of any other statement having been exhibited to the stockholders, till the meeting in March, 1848.
    If, in the opinion of the court, under the contract between the parties, the plaintiff, at the annual meeting in the spring of 1847, was entitled to have the net profits ascertained, and to receive five per cent thereof, after deducting interest as above, and if the statement E is such a making up of profits on the evidence, I find that, in addition to the sum of $555.32, above found as due to the plaintiff on account of salary, he is entitled, on account of profits, to the further sum of $335.10, with interest to be added.
    But if, in the opinion of the court, the plaintiff was not entitled to have the profits ascertained at the annual meeting in March, 1847, and the statement contained in paper E, and exhibited at the meeting of the company at that time, was not such a making up of the profits as was contemplated by the parties, then I find that there was nothing due to the plaintiff excepting the sum before stated, as the balance due for the claim for salary, namely, $552.32.”
    
      G. II. Preston, (with whom was II. H. Fuller,) for the plaintiff.
    1. The plaintiff had a right to have the percentage on the profits made up and paid to him once in each year, during his contract for services. 2. As to the time, in each year, when this statement should be made, the corporation could decide; it was not a matter under the plaintiff’s control. 3. If the defendants wholly neglected to furnish such a statement, yet the plaintiff had a right to get at the truth in the best way in his power, and to claim his share of the profits accordingly; and the neglect or refusal of the corporation to do their duty and furnish the proper evidence, could not de prive him of his rights under the contract. 4. The fact, that the statement furnished at the first annual meeting did not embrace the operations of a whole year, can make no difference ; that was the fault of the corporation, and not within the control of the plaintiff. 5. No other statement was made, and no other annual meeting took place till long after the first year of his services under the contract had elapsed. 6. In order to obtain his share of the profits, the plaintiff avails himself of the best evidence in his power, and the best the nature of the case admits, being the admissions in writing of the defendants themselves; and there is no pretence that these admissions are not according to the truth, or that they do any wrong or injustice to them. 7. Unless upon such evidence the plaintiff may recover, the corporation had it in their power to render entirely nugatory the stipulations concerning a share of the profits to be paid to the plaintiff.
    
      A. II Fiske, for the defendants.
   Bigelow, J.

The only question in this case is, whether, on the evidence reported by the auditor, the plaintiff is entitled to recover under that clause of the contract with the defendants, which provides that the plaintiff shall receive, in addition to his salary, five per cent on the net profits of the company, after deducting the expenses of the company and six per cent on the capital stock, to be made up and paid accordingly once in each year, when the books of the treasurer shall be made up to show the condition of the company.”

We are of the opinion that the plaintiff fails to show a breach of this covenant. In the first place, it does not appear by the evidence, that the books were made up to show the condition of the company, in March, 1847, the time when the plaintiff alleges there were profits shown to have been made by the company, on which he is entitled to his percentage. By the phrase, “ when the books shall be made up,” we understand it is intended to mean, according to the signification of the expression in mercantile language, and in the science of book-keeping, that process by which all the accounts contained in the books are balanced and brought up, and the result of each, thus ascertained, is carried into what is termed a trial balance, or balance sheet, exhibiting the precise condition of each account, and showing the actual state of the company, with the amount carried to profit and loss account. The language of the agreement, applied to the subject-matter, seems to us to require this interpretation. Before the plaintiff can recover, therefore, under this clause in the agreement, he is bound to show that the books of the treasurer were so made up in March, 1847; failing this, he cannot recover. Upon recurring to the testimony taken before the auditor, on this point, it will be found that it falls short of proving this essential fact. The evidence goes no further than to show, that “ an estimate ” of the state of the company was then made up, but that no accurate statement of the accounts of the company, showing its true condition, was prepared by the treasurer, or entered in the books.

But there is another and more decisive objection to’the plaintiff’s recovery for a breach of this covenant. By the true construction of the agreement, the profits, on which the computation of the plaintiff’s percentage was to be made, were intended to embrace and be calculated upon the business of an entire year, and were not to be reckoned on the transactions of a fractional part of a year. The clear intent of the parties was, that the plaintiff should receive a compensation graduated in part on a basis indicating the permanent prosperity of the company, and not upon the uncertain and temporary profits accruing during a short period. As the company did not commence business till October, 1846, and in March, 1847, when the plaintiff claims that large profits had been realized, had been in full operation less than two months, and as it appears by the evidence, that the business of the entire first year resulted in a loss, the plaintiff fails to show any ground for recovering under this clause in the contract.

We are, therefore, of the opinion, that judgment must be entered for the lesser sum reported by the auditor as due to the plaintiff.

Judgment for the plaintiff accordingly. 
      
       Metcalf, J. did not sit in this case.
     