Canby v. Frick

Le Grand, C. J.,

delivered the opinion of this court.

This action rvas instituted to recover for services rendered by the appellee to the appellant in the sale of a farm. It was proved by Mr. Evans, that in the year 1852, he purchased of appellant a farm for the sum of $10,000. The appellee took the witness to appellant to introduce him, a week or ten daj^s before the purchase was consummated. In the early part of the negotiation, the appellant made it a part of his agreement, that the witness should pay to the appellee his commissions. This was not assented to, and the appellant<( agreed to pay plaintiff’s (appellee’s) commissions.”

*167 It was proved by Thomas J. Gott that he is a land-broker, and that the usual charge by such brokers for making sales is a commission of two per cent.; some charge two and-a-half, or get it where it is offered; and also, that there is a custom in Baltimore, that if a broker takes a purchaser to a seller and introduces him, he is entitled to his commission from the seller when the sale is made: this custom extends to a class of per-, sous whose business is buying and selling land, and known in Baltimore as land-brokers. The appellee is not a land-broker, but a clerk in the office of the Baltimore Cemetery Company.

The only testimony offered on behalf of the appellant was, that on a certain day, appellee called at .his counting-room and inquired if he had a farm to sell, and if so, what he asked for it. The appellant replied he had, and would take for it $20 per acre for five hundred and forty acres; appellee then said, he knew a gentleman who wanted it.

On this state of case, the appellee asked the following instruction, which was granted by the court:

“That if the jury shall believe that the plaintiff' was employed by the defendant to find a purchaser for a tract of land called Bailey farm, belonging to the defendant, and that the plaintiff' did introduce to the defendant a person who, in consequence of that introduction, the defendant was enabled to dispose of said tract of land, and did dispose of it, that then the plaintiff is entitled to recover. And that if the jury cannot ascertain from the evidence the amount of compensation agreed to be paid to the plaintiff by the defendant, they should allow him a reasonable sum for his services, and in estimating this sum, they should be guided by the custom in such like cases.”

Two objections are urged to this prayer: — -first, that there is no evidence from Avhich the jury could infer the plaintiff Avas employed by the defendant; and second, that the prayer took arvay from the jury the finding of the custom, in such like cases, Avhicli they Avere told they should be guided by; in other words, assumed the existence of a custom in like cases.

The first objection, in our opinion, is not tenable. The evidence on the part of the defendant Avas confined entirely to a single intervieAv between him and the plaintiff. There may *168 have been others, and the other evidence in the case was sufficient to authorise the jury so to infer. The purchaser distinctly states, that in the early part of the negotiation, the defendant insisted he should pay the commissions of plaintiff. Why this, if he did not consider himself under an obligation to pay them? Again, the same witness is equally positive the defendant distinctly u agreed to pay plaintiff's convmissions. ” Evidence could not be more unequivocal. We think the second objection well taken. The proof of custom — waiving, for the sake of the argument, all inquiry as to its sufficiency, even as to a particular class — the plaintiff was by the proof shown and conceded on all sides not to be embraced in it. The only use which could be made of it was to enable the jury to form some idea of the rate at which similar services are compensated, not, however, because of the custom, but as- a fact tending to show that services of a particular kind were esteemed in the community of a certain value. It would not be binding on the jury, but would be a fact to which they would have the right to look in making up their judgment. The prayer in taking from tire jury the finding of the fact was error, and by assuming its existence, in the absence of all other testimony on the subject of the value of similar services, was clearly defective under the decisions of this court. Balto. & Susq. R. R. Co. vs. Woodruff, 4 Md. Rep., 242, and the cases there referred to. What we have said in regard to the prayer of the plaintiff disposes of the first prayer of the defendant. It was properly rejected. The second prayer should have been granted. For if the plaintiff was neither included within the class known as land-brokers nor had been employed by the defendant, he had no right of action. Had, however, the plaintiff’s prayer been free from the defect to which we have alluded, we would not have reversed the judgment because of a failure to grant defendant’s second prayer, inasmuch as the plaintiff’s prayer gave him all the advantage he could have derived from his second prayer.

Judgment reversed and procedendo awarded.