Lord Thankerton.-

This is an appeal from a judgment of the Court of Appeal, Malta, dated 9th December 1938, which upheld, by a majority, the judgment of His Majesty's Commercial Court of Malta, dated 31st May 1938, which dismissed the present appellant's action. The appellant, on behalf of the firm C. Darmanin and Son, raised the present action in the Commercial Court, Malta, on 19th February 1938, against the respondent on his own behalf and for his firm, claiming to be entitled to a half share in the profits derived by the respondent from a contract awarded to them by the Royal Engineers on 27th August 1937 for work to be done at Mosta Fort, in the Malta Command. The appellant based his claim on a written agreement dated 18th November 1936, which provided as follows:

"By virtue of this present instrument intended to have all legal effects it is hereby agreed as follows :

Joseph Darmanin for the firm of C. Darmanin and Son of the one part and Carmel Micallef for firm G. Micallef and Son of the other part confirm the negotiations already in force since sometime between them for the excavation of stone and construction thereof by means of machineries. Wherefore, the parties hereto on t