The controversy on this appeal presents the inquiry whether or not the referee is correct in his finding of fact and conclusion of law to the effect that it was understood between Parkinson, president of the American Amusement Company, and the defendant, at the time defendant commenced operating the Strand theater in November, 1915, that defendant was to be compensated for his *104services in conducting this theater, and in default of fixing the amount thereof defendant is entitled to recover a reasonable amount for services rendered?

■ This finding of fact and conclusion of law was confirmed by the circuit court upon the ground that this fact so found cannot be held to be against the clear preponderance of evidence in the case. The evidence bearing on this point is confined to the statements of interviews between Mr. Parkinson and the defendant, which must be interpreted in the light of the circumstances under which they were had. The defendant had operated the Casino theater under contract for one year ending August 1, 1915. Before the expiration of the contract, interviews between Parkinson and defendant concerning the erection of another theater were had in which Parkinson asked: “If I build this theater will you stand by me?” and defendant stated he would. The question of compensation was not then alluded to. The defendant continued operating the Casino theater under the former agreement, which provided for a salary of $25 per week and twenty-five per cent, of its net profits, which salary was not to be paid unless the receipts of the business above operating expenses were sufficient to pay them. Shortly before opening the Strand in November, 1915, the parties alluded to defendant’s compensation for operating it. Parkinson testifies that defendant suggested receiving one third of the profits without any salary. The defendant’s version of the interview 'is that when he was asked about compensation for operating the Strand he stated: “I don’t want to be hogging all the profits, I want to see how you come out here with your investment. Possibly we can handle it on some percentage terms; might deduct the costs and expenses and divide the profits, two thirds to you, one third to me, as a basis. Give it a test for either sixty or ninety days and see what the theater is'going to do and see what happens.” Defendant denies that it was then under*105stood he was to be compensated out of profits from operating the Strand, and that no arrangements were thereafter made fixing his compensation. He had exclusive management of the Strand for a period of sixty-three weeks ending February 4, 1917. The enterprise was unprofitable and defendant did not make a charge in his accounts for services for conducting the Strand until they terminated, and then he held the profits from the Casino as payment for his services in operating the Strand. Considering the declaration of defendant in the light of his employment by plaintiff for operating the Casino, and all the facts and circumstances under which the interviews between the parties were had, it warrants but the one conclusion that it was understood by them that defendant was to be compensated for his services in operating the Strand out of the profits, if any were realized. The fact that the parties agreed to operate the Strand for some months before fixing the definite amount to be paid defendant does not contradict the idea then entertained by them that they contemplated and understood that defendant was to be paid out of the profits. This being the case, it follows that defendant was bound by the arrangement as far as consummated, and since the venture produced no profits he cannot claim payment for his services. We are persuaded that the referee's fifth finding is not sustained by the evidence; that the court verred in confirming it; and the judgment appealed from must be reversed. The plaintiff is entitled to judgment for the recovery of the $945 with interest at six per cent, from the commencement of the action, pursuant to the stipulation of the parties dated June 3, 1919.

By the Court. — It is so ordered.