1. The complaint alleges that on November 18, 1910, Poyntz entered the employ of the defendant as its secretary and cashier, and that in consideration thereof the company agreed to pay him “a certain salary each and every month, and in addition to said salary to pay to plaintiff 10% of the net profits realized by defendant from the conducting of the aforesaid business.” The defendant admits “that down to about the thirty-first day of December, 1914, defendant paid to plaintiff a certain salary each month and in addition thereto 10% of the net profits of defendant’s business.” The only evidence of any written contract to pay “10% of the net profits” is the letter of February 28, 1913, and “it specifies “ser*656vices for the current year”; that Poyntz should draw a monthly salary of $200, “and at the plose of the year’s business take 10% of the net profits, * * or, in other words, will guarantee you three thousand dollars ($3,000) for the year’s compensation.” This letter specifies and refers to the business for “the current year,” which would end on December 31, 1913, and, standing alone, could not be construed as a continuing contract. The defendant contends, and there is some testimony tending to show, that on different terms and conditions other yearly contracts were made with Poyntz, but apparently they were lost or misplaced, and none of them were introduced in evidence. The complaint is founded upon the theory that Poyntz had a continuing contract, and that from November 18, 1910, to September 1, 1916, he was entitled to and should have “10% of the net profits” of the company. The testimony is conclusive that up to January 1, 1915, the company paid, and that Poyntz received, a commission on the net profits of the defendant’s business, and that for the year 1914 such profits were $1,717.07, upon which he was paid 10% or $171.71. The four lots in Block 205, Couch’s Addition to the City of Portland, were purchased on February 1, 1913, upon which the taxes and accrued interest have been paid from and out of the earnings of the corporation. In her reply the plaintiff admits that M. D. Poyntz “had knowledge that the expenses thereon were being paid out of the net profits of defendant’s business, and believed that he would become entitled to and receive a 10% interest in said property when the same was paid for.” Poyntz was the cashier and bookkeeper of the defendant and had knowledge, control, and supervision of the entries in the books, and the method and manner *657in which the books were kept and the entries made. The lots were purchased for the use and benefit of the company, and to be used in connection with, and as a part of, its business. The testimony shows that it was a bad investment, and that after Poyntz left its employ the company offered to sell the property at a loss of $5,000 and to pay him a commission of $1,000 if he would find a purchaser. In that transaction there would have been an actual loss of $6,000 to the company. On January 1, 1915, Poyntz was paid his 10% of the profits for the year 1914. This was nearly two years after the purchase of the lots in February, 1913. During all of that time he had charge of the books, prepared the statements and trial balances, and no entry was ever made which would tend to show that Poyntz had, or claimed to have, a 10% interest in the money which was paid on account of taxes or the interest which was paid on the purchase price of the lots. The only written evidence of his right to 10% of the profits is the letter of February, 1913, which clearly shows that it was a contract for “the current year.” In the ordinary course of business it would be usual and customary to have a final settlement at the end of the current year for the previous year’s business, and the fact that on January 1, 1915, based upon his own records and statements, Poyntz was paid $171.71 as 10% of the profits for the previous year’s business, is strong evidence that such annual settlements were made, and that he did not then have, or claim to have, any share in the money which the company paid out on account of taxes or interest on the lots. Again, the testimony is undisputed that he did not make any such claim until after he left the employ of the company on September 1, 1916. There is no evidence that the com*658pany prior to that time ever knew of, or in any way recognized, his present claim, and the only testimony on the part of plaintiff concerning such claim relates to conversations between Poyntz and his wife and the witness Charles G. Hayden, who was Poyntz’ intimate friend from 1910 to 1916. When analyzed, Hayden’s testimony is confined to a conversation had with Poyntz in 1916 after this suit was commenced, in which Poyntz, referring to the four lots, said:

“He had anticipated that he would get some of the benefits from that purchase; that the plan had been that they were to put up a building on this new property and do away with the old barn, sell the property down there, in which case he would come in for quite a substantial portion of the profits on it. ”

That does not tend to prove plaintiff’s case. The testimony of Mrs. Poyntz as to such conversations is, in substance, that:

“He absolutely thought the contract was in effect; * # that that 10% of the profits contract stood and something could be expected from that. * * He expected to share in some way in the interest in this property. * '* He said that he could not tell how much would come from that because the business had not been as prosperous as it had been before, and he could not say whether there would be anything, from the profits, but he expected there would be something. * *

“Q. The fact of the business, Mrs. Poyntz, all you-know about this case, and what you have testified to here to-day, is simply your impressions or memory of what your husband told you in his lifetime?

“A. Yes; what he told me and what impression I have received from what his understanding was; * * that he expected that if the property was used, or in the event that they did not build on it and it was later sold, that he would share in the profits.”

There is no evidence that the property was sold, and the record shows that there was a shrinkage in *659value of at least $6,000. Upon the theory of either the complaint or reply, there is a failure of proof.

The decree is affirmed. Aeeirmed.