1. In this action, which was tried by the court-without a jury, it was incumbent upon the plaintiff to establish, by a preponderance of proof, that the defendant received an amount of money in excess of that stipulated in the contract set up in the complaint, as compensation for his services. This seems to have been conceded below as a proper construction of the pleadings and of the contract. Although it was admitted that defendant had received and retained more than he was authorized to draw out from month to month, the plaintiff wholly failed to show that the amount was greater than that which actually became due to him as compensation, and which was to be determined by the amount of the profits of the business. Plaintiff ought not to expect the trial court to surmise or conjecture as to what the profits were, or, in the absence of proof, to declare that there were none; in other words, to determine defendant’s compensation, without evidence as to the profits of the business on which it was made to depend.

*3802. It. clearly appears that no list of the names of persons to whom credit might be given by plaintiff and defendant without incurring individual liability was ever made, as contemplated hy the agreement. Without the making of such a list, that part of the contract was of no effect.

Order affirmed.