Between Jous Forster, defendant and appellant, and Joux Cuarzes Sxxy, plaintiff and respondent, I have carefully considered the evidence in this case and the judgment of the Court below, and am of opinion that the judgment must be partially reversed.
I think there is clear evidence that the original written agreement, which expired in 1869, was varied in its terms by the subsequent parol agreement entered into between the parties. It is a simple question of evidence, viz., to which of them credence is to be given, and I am clearly of opinion that the weight of testimony is in favour of the appellant. And Teven go further, and say that, on the whole of the evidence, itis his story that is to be believed, and not that of the respondent. It a man puts forward a claim so extra: Yagant_ as the present claim, and supports with so little evidence, he must take the consequence of the suspicion which naturally attaches to the whole of his case and I entirely concur in that portion of the reasons for the judgment which recites that by an apparent acquiescence in Mr. Forster's plans, the respondent has allowed the appellant to remain under the impression that the respondent had given his full and unqualified consent to a reduction of his salary to $5,000." I disallow therefore the first item mentioned in the judgment, viz, the salary and mess allowance from Ist of January 1870, to 28th of February, 1871.
Tu the same way I disallow the 2nd item of $661.66 in respect of a commission at 24 per cent from Ist of January 1870, to 28th of February, 1871.
Tallow the sum of $650, mentioned in the Sed item, for extra mess allowance of $50 a month, from Ist of December 1868, to 31st of December 1869.
Tallow the sum of $2,057.55, commission at 2} per cent on the gross receipts of the steam tug Woosung, less the sum of $942 respect of bills for commission for re] coal, &e., done and furnished to the said tug, from June 1866 to Feb. 1871, not so much on the principle that, by the agreement of the 28th of Oct. 1863, such a percentage was clearly agreed upon, as upon the evidence of 'a subsequent expressed intention of the appellant that he would allow the respondent such a commission. 1am at a loss to understand upon what basis the item of $1,500 for interest and costs is allowed to the respondent. Taking the verdict as it stands, he would clearly not be entitled, according to any scale of fees, to such an amount. fle sued the appellant for an amount far exceeding what recovered. The costs-would not pro-according to & exceed $500, and I am willing to allow him. The ict will therefore stand for $2,108, including interest and costs. As the judgment of the Court is only partially reversed, I order appeal. each party to pay their own costs of this
Text read from the printed page and cleaned; old type leaves the occasional error.