#### *James Dunlap vs. John O'Dena.*

Defendant, who owned a large saddlery and harness manufactory and two negro workmen employed in the factory, contracted with the plaintiff “to pay to him one third of the net proceeds.” *jHeld,*on bill for an account, 1. that defendant was entitled to credit himself with his own labor and the labor of the two negroes ; and 2. that this question was properly raised before the Chancellor, and was not one to he reserved for the reference.

*Before*Johnson, Ch. *at Charleston, June,*1844.

*The’ Chancellor.*— The complainant states in his bill, that in April, 1837, the defendant purchased of the administratrix of the late Andrew M’Feeters, the stock in trade for carrying on. the saddlery and harness making business, of which he died possessed, consisting of harness, leather and saddlery, together with the tools and implements of trade employed in a large saddlery and harness manufactory, two negro workmen brought up to the said trade and employed in the factory, *&c.*That the purchase *273was made on a credit of five years, and that the defendant, in consideration that complainant would join him in a bond for the payment of the purchase money, agreed that he would give complainant one third of the net proceeds of the business. That complainant did accordingly join him in the bond, and that defendant afterwards, on the 25th February, 1839, did, in pursuance thereof, make and deliver to him a bond, to which the following condition is annexed, that is to say.

“Whereas, I, John E. O’Dena, purchased the stock in trade of Andrew M’Feeters <fe Co.,” (fee. “And whereas, James Dunlap was my security, and by agreement with me, was to receive one third part of the net proceeds of what might be made therefrom.

“Now the condition of the above obligation is such, That if the said John E. O’Dena shall account with the said James Dunlap, at the end of the said credit,” (fee. “and pay to him one third of the net proceeds thereof, then the above bond to be void,” (fee. and he further states that defendant did carry on the business until the end of the time limited for the credit, and he prays an account of the profits, (fee.

The bill states various circumstances by way of inducement to the contract, which are denied in the answer, and repelled by contradictory statement. These are not thought necessary to the determination of the question now to be decided, and are therefore not stated. It will be enough for the occasion to state that the agreement set out in the bill is admitted, and the defendant has filed an account with his answer, in which he credits himself with his own labor, and the labor of the two negro workmen. On the reading the bill and answer, Mr. M’Orady, the defendant’s solicitor, offered evidence to shew that according to the general understanding and usage, “the net profits of what might be made therefrom,” that is, “the stock in trade,” was exclusive of the services of the defendant and the negro workmen. This was opposed by Mr. DeSaussure for complainant, principally on the ground that the question whether the defendant was or was not entitled to compensation for his own and the workmen’s labor, under the agreement set out in the bill, would properly arise on the reference of the accounts before the master. I think the question properly raised here, as it involved the ques-j tion whether, according to the legal interpretation of the agreement, the defendant was or was not entitled to make these charges, because on the event of its being decided that he was *274not, it would save the inquiry before the master. But I rejected the evidence, because it went to establish what, in my judgment, is the necessary and legal deduction from the contract itself, that the net profits of this business was what remained of the receipts after deducting the costs of the raw material, and of the labor and expense of carrying it on, including, of course, the labor of the defendant and his two negro workmen.

It is therefore ordered, that the accounts of the defendant be referred to the master, and that he report thereon, crediting the defendant with a reasonable allowance for the labor of himself and the two negro workmen, in carrying on the business.

The plaintiff appealed, on the following grounds.

1. It is respectfully submitted, that the Chancellor should have granted'the motion of complainant, for the usual general reference to the master', of all the accounts involved in the case, and not have decided an isolated important fact, without evidence: viz: what constituted the stock in trade, according to the understanding of the parties.

2. That by the strict construction put by the Chancellor on the agreement, for a share of the net profits, he has excluded the complainant from all compensation for his services to the concern, in conducting the pecuniary arrangements of the establishment, receiving part of its funds, purchasing materials, paying debts, advancing his own funds, &c.

3. That the effect of the Chancellor’s decision is, to give all the benefit of the agreement to the defendant, and to exclude the complainant from all advantages therefrom.

*H. A.*Desaussure, for the appellant,

*McCrady,*contra.

*Per Curiam.*

We concur in the decree of the Circuit Court, Appeal dismissed.

Johnson, Harper and Dunkin, GC. concurred,