Power v. Kane , 5 Wis. 265 ( 1856 )

By the Court,

Smith, J.

We think tbe judge below decided correctly, tbat tbe plaintiff below was not entitled to recover. The-compensation of tbe plaintiff was to be, according to usage, three per cent, on tbe purchase money. If there is no purchase there is no compensation; it all depends upon tbe consummation. of the sale. Power had no authority to make a written contract of sale, and there was, in fact, no sale; and it makes no difference whether the bargain failed through the default of Kane or the purchaser. The plaintiff took the risk of both, and depended for his compensation upon his skill and fortune, in consummating the sale. This is evident from the fact that the amount of compensation was not at all to be regulated by the amount of labor, time and skill employed, but wholly upon the amount of the purchase money, no matter at how much or little cost of the former, the purchase might be effected. To allow a recovery upon a state of facts, such as this record presents, would open a door to endless frauds, and no one could tell how soon he might be called upon to pay three per cent, upoú the value o‘f his estate. As before remarked, the fact that the amount of compensation depended upon that of the purchase money, and that this amount is fixed by usage, is clear evidence that without a sale there was to be no reward. The evidence of usage is rather frail to establish the fact sought to be proved by it, and certainly its effect ought not to be extended beyond its clear import; which is, that it is the custom for the agent in such cases to charge three per cent, upon the amount of the purchase money paid by the vendee, and received by the vendor. Whether or not the plaintiff would be entitled to a quantum meruit for his services actually rendered upon an employment by the defendant, it is unnecessary to determine, as that is not his claim. His demand is three per cent, upon the amount which it is alleged Lockwood was ready and willing to pay. There is no proof of any contract to pay that amount, nor any proof of a usage that would entitle him to it, because there was no money paid, or agreed to be paid, nor any proof that his services were worth that amount.

It is not denied that usage may enter into and become a part of the law of trade, or that the law is to be applied to the transactions of parties, contracting and doing business in view of, and in reference to such usage. But it is not readily adopted by courts, and the proof of such usage must be clear and explicit, and the usage so well established, uniform, and so notorious tbat tbe parties must be presumed to know it, and to have contracted in reference to it. 3 Watts, 178 ; 3 Wash. C. C. R. 150; 1 Gallis, 443; 5 Bin. 287; 9 Pick 426 ;4 B. & Ald. 210; 2 Met. 65 ; 2 Gill & J. 136; 5 Wheat. 326; 15 Mass. 433 ; 1 N. & M. 519; 2 Sumn. 377; 3 Chitt. Pr. 55: 1 Dall. 178. Even if tbe usage established among land brokers themselves is sufficient to entitle them to recover three per cent, upon tbe amount of tbe purchase effected through their agency, it has no efficacy until the sale is consummated.

If the doctrine contended for by the counsel for the plaintiff in error be correct, his claim would be equally valid against the legal representatives of the defendant, even though the bargain had failed through the death of the latter.

The judgment of the court below is affirmed, with.costs. ■