James C. Luce, Respondent, v. Richard T. Hartshorn et al., Appellants

James C. Luce, Respondent, v. Richard T. Hartshorn et al., Appellants. (Argued February 20, 1874; decided February 27, 1874.) This action was brought to recover a balance alleged to be due upon a contract. On the 5th of July, 1866, the defendants were proprietors and publishers of a book called “ American Lloyds Register of American and Foreign Shipping,” and at that date entered into an agreement, in writing, with the plaintiff, who was an inspector of The Great Western Marine Insurance Company, of the city of New York, and with the inspectors of certain other insurance companies, whereby said inspectors agreed to furnish the defendants, when called upon, reports of inspection of vessels, and information in regard to vessels, with a view to a uniform classification and rating of vessels in reference to insurance, and to use their influence in promoting the interests of said publication. The defendants agreed to share equally with said inspectors in fifty per cent of the net profits from the sale of said publication, and the moneys from the surveys and classification of vessels. The agreement to continue in force with the inspectors only while they should continue to be such of said companies, and the defendants should continue to be proprietors and publishers of said work. Immediately after the execution of the agreement, the inspectors and the defendants organized themselves into a voluntary association, called the American Lloyds Association, of which the plaintiff was made president, and one of the defendants secretary, and the other treasurer. On or about the fifth of July, in each year, the defendants made up an account, rendering it to each party interested with them, according to the stipulations of the agreement. The defendants rendered their accounts from July, 1868, to July, 1869. The share of the plaintiff was ascertained to be $540.31, on account of which" he had received $212.21. To recover this balance the action was brought. As a defence, the defendants proved that in 1868 the following resolution was passed by the board: “ Whereas, it was the original intention of this association that its members should record the reports of their daily inspection in this office; it is, therefore, “ Resolved, That one inspector of each insurance company, who may be a member of this association, shall write in the books, provided for that purpose, a report of such inspection or inspections, as he may have made within two days of the time of making such inspections; provided, always, that such reports have not been previously written in said books.” That boobs were provided as prescribed, but that plaintiff did not write reports of his inspections therein as required. The referee found that he performed all the services required by the contract. Held, that under the contract the calling upon plaintiff for reports or requests for information were conditions to be performed by defendants in some reasonable way, in' order to put plaintiff in default. That the contract was not changed or affected by the subsequent action of the association as to any party not assenting thereto, and that plaintiff’s neglect to perform the new duties imposed upon Mm by the resolution did not forfeit his rights to compensation under the contract. Defendants’ counsel also claimed that plaintiff was not entitled to his compensation until the termination of the contract. Held, that the contract, showing that it was intended to continue it for a series of years, and no time being specified for its termination, the parties must have intended an accounting and division of profits after the lapse of a reasonable time, and that the parties, by their previous acts, had fixed upon a year as that reasonable time, and that must be taken as a proper construction of the contract. Wm. Henry Arnoux for the appellants. Theron M. Strong for the respondent. [MAJORITY — Grover, J.,] Grover, J., reads for affirmance. All concur. Judgment affirmed.