
    James Mooreman against A. De Graffenread.
    Two persons, Le'farcr"Sf°teil produce carried being sold byoue of them as agent aSóugf&eyTí jointly interested inti>eM«ht,yet the commissions alstínft “matte?! and one may be a ™‘“®33 for the tract t0 allolT (t‘í““issSs a Sombro?01the carrier to sell the K’V4 special contract as to re¡JHjj® todjaS up°“'
    This was an action to recover the amount an account for commissions on the sale of some cotton.
    It was proven on the part of the plaintiff, by _ _ it t Mr. Ihomas, that the defendant had agreed to 7 o pay the plaintiff commissions on the sale of the . . . cotton; but that it was the custom m that neighbourhood not to charge commissions, the freight -i! n* . ° for boating being considered a sufficient compensation: this fact was also proven by other wit- # # nesses. The witness, Thomas, said he and the plaintiff were co-partners in the boating business x x only ; that defendant’s cotton was carried down, and sold by the plaintiff for him. A motion was made to nonsuit the plaintiff, which was overruled, and a verdict found for him. The defendant now moves for a nonsuit and new trial. 1st, Because the witness who proved the special agreement was a co-partner of the plaintiff, and having a joint interest, ought not to have been sworn. 2d. Because the special agreement, though it was proven, was not declared on.
   The opinion of the Court was delivered by

Mr. Justice Colcock.

The first ground is incorrect in point of fact; the defendant’s counsel has misconceived the testimony, for .it was expressly proven that the witness was a co-partner only in the boating business, and had no interest in the commission to be received by the plaintiff! It was also proven, that the defendant had agreed to pay commissions in this particular instance; and although a custom will establish the rule of decision, where no agreement has been made.; it cannot counteract an express agreement, it is, therefore, unnecessary to say any thing in relation to the proof offered in support of. the custom.

The second ground is, that a special agreement was proven, and was not declared on. In the first place, this is not a special agreement — it is an express agreement. But every express agreement is not a special one: there were no special circumstances in the case. In the ordinary intercourse between men, commissions on the sale of goods are allowed. The defendant being desirous to obtain the best exertions of the plaintiff in the sale of his cotton, offers him what is usual, (except in that particular neighbour-! hood;) and the plaintiff, aware of the prevailing custom, requires the express promise of the defendant to be made in the presence of witnesses. But if this could be called a special agreement, It is clear that, where the promise is to pay in money, and the contract is performed, indebitatus assumpsit will lie, upon the promise; and this is the case even where the promise is implied. (1 Chitty, p. 338.) Where the contract is to be executed in future, and is executed, the plaintiff' may proceed in two ways; he may declare either upon the original executory contract, or upon an indebitatus assumpsit, or quantum meruit, for the price to be paid for the service performed. (1 Wilson, p. 117.)

Motion dismissed,

GrimJc'e, JYott, Cheves, Gantt, and Johnson, J. concurred.  