First Department, December, 1920. App. Div.] contract plaintiff was unsuccessful in bringing to the defendant much, if any, business of the nature specified in the contract. The engineering business of the defendant, by reason of the breaking out of the war in 1914, languished, and the defendant then conceived the idea of embarking in an entirely new line of business, namely, that of exporting and importing merchandise, and it appears that plaintiff, to some extent, participated in defendant's efforts to build up a new line of business. In July, 1916, the plaintiff introduced to the defendant one Pablo Floussfisch, with whom the plaintiff had theretofore had some dealing, and from which connection plaintiff had apparently derived some income. The defendant thereafter made an arrangement with Floussfisch whereby the latter was to attend to the purchasing, shipment and sale of certain exports and imports in South America, and particularly in Argentina, and the defendant was to finance the same. Under this arrangement Floussfisch and the defendant shared equally in the profits from such export and import trade. The evidence discloses that in 1916 the defendant was desirous of extending its commercial export and import business to the Orient, and made some effort to secure the services of a representative to aid it in establishing an oriental business. In the autumn of 1916 the plaintiff introduced to the defendant a young man by the name of De Sherbinin, and represented to the defendant that he would be a good man to act as their representative in the Far East. Negotiations were had between the defendant and De Sherbinin resulting in an agreement entered into between defendant and De Sherbinin whereby the latter was employed to go to the Orient as the representative of the defendant and for the purpose of establishing a commercial business there for said defendant. By that agreement De Sherbinin was to receive one-third of the net profits arising upon such business as he might procure, the balance to be retained by the defendant. Soon thereafter De Sherbinin departed for the Far East, and was soon successful in establishing a trade there in behalf of the defendant. Almost from the start De Sherbinin succeeded in placing large orders. These orders commenced to come in to the defendant in February, 1917, and during that month amounted to over $100,000. The March orders amounted to $95,000, and the April orders amounted to $550,000. The First Department, December, 1920. [Vol. 194. latter part of May, 1917, De Sherbinin left Yokohama for America. The evidence shows that in the early part of 1917 considerable discussion was had between representatives of the defendant and the plaintiff, notably the vice-president of the defendant, H. W. Buck, with reference to a stated salary or compensation which the plaintiff was to receive. According to the testimony the various talks had between the parties culminated on April tenth in an oral agreement with reference to compensation which the plaintiff was to receive from the defendant for the year ending March 31, 1917, and also with reference to the compensation which he was to receive for the year commencing April 1, 1917. On the same day defendant's vice-president, Buck, representing the defendant, after talking with the plaintiff, dictated a memorandum and laid the same upon the plaintiff's desk in the business place of the defendant in the following form: "R. E. F. FLINSCH, Esq., "Office: April 10th, 1917. "The following is in confirmation of our talk this morning. "For the year ending March 31st, 1917, we will pay you a retainer of $2,500 and in addition, an amount equal to 10% of the net profits accruing to us from the Floussfisch business, which has been liquidated up to that date. In figuring the net profits of the Floussfisch business, it is understood that proper office expenses will be charged in, and also reasonable allowance for overhead expense. "From April 1st, 1917, we will also pay you a retainer at the rate of $2,500 per year, in consideration of your assisting us in the export business, and also a sum equal to 10% of the net profits as above, from the Floussfisch business, or other business which you yourself originate in our behalf, to an equal extent. These profits are to be reckoned semiannually, on business actually liquidated during the period. "In case the time and effort required to be devoted by you to our business reasonably justifies it, the retainer may be increased by mutual agreement and adjustment. "This arrangement takes the place of our memo of November 25th, 1913. H. W. BUCK. "HWB/d" App. Div.] First Department, December, 1920. At the same time the defendant placed upon the desk of the plaintiff a check for the $2,500 mentioned in the aforesaid memorandum as a retainer for the year ending March 31, 1917, together with a formal receipt therefor, reading as follows: "April 10, 1917. "VIELE, BLACKWELL & BUCK "TO RUDOLPH E. F. FLINSCH, Dr. For salary for year ended March 31, 1917, $2,500.00 Approved: W. M. B., Treasurer. Received from VIELE, BLACKWELL & BUCK "Two Thousand, Five Hundred Dollars, in full settlement of the above account. "Dated. April 10, 1917." The plaintiff saw this memorandum of agreement, did not object thereto, and signed said receipt which had been prepared by the defendant for the $2,500. Buck testified that the aforesaid memorandum was in all respects in conformity with the oral talk which he had had with the plaintiff, with the exception of the final clause; that the arrangement took the place of their memorandum of November 25, 1913, which he says was not talked between them. However, the plaintiff did not object to the inclusion of the last-mentioned statement in the memorandum and never disputed or denied the correctness of the same. Thereafter the plaintiff continued in the office of the defendant until July 1, 1918, assisting the defendant in its export business. In the original complaint herein, wherein the plaintiff demanded judgment for the sum of $175,000, the plaintiff sets forth both the contract of November 25, 1913, and the subsequent memorandum of agreement of April 10, 1917. Upon motion of the defendant the court ordered the plaintiff to serve an amended complaint concisely stating his cause of action. Thereupon the plaintiff did serve an amended complaint wherein he alleged as the basis of his claim only the original written contract between the parties dated November 25, 1913, and alleged that he was entitled to commissions at the rate of twenty-five per cent upon the net profits received by the defendant, not only from the Floussfisch APP. DIV.-VOL. CXCIV. 30 First Department, December, 1920. [Vol. 194. or South American business, but also upon the business in the Orient secured through De Sherbinin. The defendant, however, answered the amended complaint, setting forth, among other things, the contract of April 10, 1917. The issues were sent to a referee and the referee has decided that the plaintiff cannot recover upon the cause of action set forth in his amended complaint, and cannot recover upon the contract of November 25, 1913, for the reason that the commercial business which the defendant has conducted, and growing out of which said commissions are demanded, was not contemplated by the contract. That contract provided that the plaintiff was to devote his time as far as possible to such negotiations as may result in bringing to Viele, Blackwell & Buck engineering, construction, reporting, appraisal or other work." The plaintiff contends that the commercial business of exporting and importing comes fairly within the provision of the contract as "other work." The referee, however, found that, under the rule of ejusdem generis, the words "other work" refer to the engineering, construction, reporting and appraisal work, which was generally the work that the defendant, as an engineering corporation, had theretofore carried on. Therefore the referee held that under the original contract the plaintiff could not recover commissions either on the Floussfisch or the De Sherbinin business. The referee also held that under the terms of the contract of April 10, 1917, the previous contract of November 25, 1913, was superseded. I think the learned referee correctly decided both of said propositions. I am entirely clear that at the time of the making of the original contract on November 25, 1913, the defendant did not contemplate engaging in any commercial business, and that plaintiff's employment was entirely along the lines of engineering work, and that the term "other work" in the original contract related solely to other work of the same general nature as that specified in the contract and in which the defendant had theretofore been engaged. Also, I think the plaintiff is bound by the statement contained in the memorandum of agreement placed upon his desk by the defendant's vice-president on April 10, 1917, purporting to express the new arrangement made between them, which App. Div.] First Department, December, 1920. arrangement it was stated took the place of the former agreement of November 25, 1913. If I am right in this respect, then the plaintiff is not entitled to recover under the first contract any sum whatsoever. The referee, however, held that, under the clause contained in the memorandum of agreement of April 10, 1917, to the effect that "from April 1, 1917, we will also pay you a retainer at the rate of $2,500 per year, in consideration of your assisting us in the export business, and also a sum equal to 10% of the net profits as above, from the Floussfisch business, or other business which you yourself originate in our behalf *" the plaintiff is entitled to recover his commissions at the rate of ten per cent upon the business in the Orient procured through De Sherbinin, who had been introduced by the plaintiff to said defendant. In other words, the learned referee has held that the term "other business which you yourself originate in our behalf," embraces any business, past, present or future, which was originated by the plaintiff. From a careful examination of this provision of the memorandum agreement of April 10, 1917, I am constrained to disagree with the conclusion of the referee. I think the provision taken as a whole refers to new business or future business which the plaintiff may originate in behalf of the defendant. I do not think the parties at that time had in contemplation the De Sherbinin or oriental business, although at the time this contract was entered into said business in the Far East was in a most flourishing condition and bid fair to bring to the defendant enormous profits. In the provisions of the contract of April 10, 1917, the Floussfisch business was particularly mentioned, and no good reason appears for not mentioning the De Sherbinin business, if the parties at that time considered that such business was affected by or embraced in the contract. Furthermore, the provision as to the payment of ten per cent of the net profits on other business originated by the plaintiff in defendant's behalf also was followed by the following significant words, to which the referee attached no importance, namely, " to an equal extent." I think the evidence fairly shows that in originating the Floussfisch business the plaintiff was far more instrumental than in originating the De Sherbinin business, which origination |