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