The opinion
Mr. Justice Potter,
dissenting:
I think the conclusion reached in this case by the majority of the court is based upon a misapprehension of what the contract between the parties really was. It was a contract of insurance by which the plaintiff was to guarantee the defendants against loss by reason of bad debts, upon all sales made by the defendants during the year. The compensation of the plaintiff for insuring against this risk of loss was to be one per cent of the amount of the sales. If the sales were large in volume, the commission would be large in proportion; if the sales were small, the commission would be reduced accordingly. There was no agreement as to any definite amount of sales or commission, beyond the fact that it was to be limited to one per cent of the amount of those sales, whatever they were. If the defendants had remained in business during the entire year, while their sales might have been greater, yet the risk of loss to be borne by the plaintiff would also have been larger. When the defendants ceased doing business in April, 1892, then, at that instant, the risk of insurance against bad debts which the plaintiff was called upon to bear also came to an end. He was not thereafter called upon to insure the defendants any further against the risk of loss by reason of bad debts, and he therefore necessarily was not in a position from that time on to earn any more commissions, and this for the obvious reason that his commission was limited to one per cent of the actual amount of the sales. When the sales ceased the insurance ceased, and the compensation to be paid for it, as a matter of course, also ceased. The opinion of the majority of the court has apparently taken no account of this fact; and it permits the plaintiff to recover commissions against the defendants upon a large amount of sales which were never in fact made by them, and as to which plaintiff took no risk of insurance whatever, and upon which he therefore had no right to ask for compensation. The affirmance of this case gives to *97 the plaintiff something for nothing. I cannot agree to such a judgment.
Mr. Justice Elkin concurs in this dissent.