Potts v. Aechternacht

Mr. Justice Paxson

delivered the opinion of the court, March 1st 1880.

This was a suit to recover commissions upon the sale of a colliery in Schuylkill county. Upon the trial in the court below, the plaintiff disclaimed any claim for compensation in effecting the sale other than the ordinary commissions for the sale of a colliery, and so interpreted his bill of particulars.

If the plaintiff is entitled to recover anything under the evidence, which is by no means clear, it is manifest he is not entitled to the ordinary, that is, the customary rate of commissions, for the reason that there was no evidence of the existence of a fixed customary rate in Schuylkill county. The defendant’s sixth point raised this question, but the court below refused to affirm it for’the reason that one witness (Mr. Wadleigh) had testified that ten per cent, was an ordinary rate of commission in 1868. What the witness did say, was this: “Five per cent, was a low commission at that time. As business was transacted at that tíme, ten per cent, was an ordinary commission. I am familiar with the sale of property of that kind in Schuylkill county.” The witness appears to have been engaged in mining, and for anything that the evidence discloses, never bought or sold a colliery on his own account or as a broker, save in this single instance. The only other witness called by the plaintiff upon this point was William L. Williams, a dealer in coal and formerly “ a coal operator,” who said that commissions generally vary from twelve to twenty-five per cent. All this falls very far short of establishing a customary rate for the sale of collieries. The plaintiff having disclaimed of reeord any claim for compensation “other than the ordinary commissions ” elected to recover under and by force of a custom by which the rate of commission on sales of collieries in that county was fixed at a certain sum. It is almost needless to say that to establish such a custom, it must be reasonable, certain, uniform, continued, and moreover, generally understood and acquiesced in by persons engaged in buying and selling collieries. Where a custom exists, parties are presumed to deal in view of it, and where no agreement is made as to commissions, that they agree to pay the customary rate. In the absence of such custom, and of any agreement as to rate, the measure of compensation would be the value of the services rendered. This is always a safe standard and should never be set aside for a custom unless the latter is proved to be so well known and so long persisted in that the parties must be presumed to have known of it. A usage which is to govern a question of right, should be so certain, uniform and notorious as probably to be known to and understood by the parties as entering into their contract : United States v. Duval, Gilp. 356. And it cannot be proved by isolated instances : Dean v. Swoop, 2 Binn. 72; Cope v. Dodd, 1 Harris 33.

Here the testimony in support of a customary rate lacked the essential elements of certainty and uniformity. Five, ten, twelve, fifteen, sixteen and twenty-five per cent, were all mentioned by the witnesses. And it is at least a question whether the rate relied upon — ten per cent. — is not open to the further objection of being unreasonable. Upon this point, however, we are not called upon to express an opinion.

It follows from what has been said, that the defendant’s sixth point should have been affirmed. The answer to the defendant’s fourth point (first assignment), was immaterial, as the plaintiff did not seek to recover on the promise to pay the $1000. Nor was there error in the exclusion of Mr. Redner’s testimony. He admitted that he had “ no experience in 1868 or 1869 in the sale of coal lands or collieries in Schuylkill county.” He was not, therefore, an expert.

Judgment reversed, and a venire facias de novo awarded.