
    
      DUTILLET & AL. vs. CHARDON.
    
    Appeal from the court of the parish and city of New-Orleans.
    If property be leased at auction, the auctioneer is to be allowed for his trouble, on a quantum meruit.
    
   Mathews, J.

delivered the opinion of the court. The plaintiffs and appellees, as auctioneers, claim from the defendant $577 50, for services rendered in disposing of certain lots belonging to the state, agreeably to an act of the legislature, 1816, 31. Judgment having been given for the plaintiffs, he appealed.

It appears, by the account annexed to the petition, that the appellees claim this sum, as commission on the real value of the property sold at auction, in conformity with an act of the legislative council, 1805, 4, to regulate sales at auction, on which they estimate the sale of the lots, as they call it, to $57,750.

East’n. District.

Feb. 1817.

The act of the state legislature first mentioned, requires the property,concerning which it was enacted, to be let out at public auction, to the highest bidder, for a term not exceeding twenty five years. That of the legislative council provides only for sales of property, and fixes positively the commission of auctioneers. On a proper construction of these laws depends, in a great measure, the soundness or error of the judgment of a parish court.

We are of opinion that the disposition made of the property was not a sale; it clearly amounts to nothing more than a lease for years: it cannot therefore bring the claim of the appellees within the provisions of the act of the legislative council. Believing the judgment of the parish court to be founded on this law, which does not embrace the present case, it is believed to be erroneous. The appellees have no right to recover the amount of commissions as for a sale, made by them in the capacity of auctioneer and can only in justice claim such a sum, as may appear to be due them on a quantum meruerunt, for services rendered to the appellant, in exposing the property to be leased.

Morel for the plaintiff's, Esnault for the defendant.

It is, therefore, ordered, adjudged and decreed that the judgment of the parish court be annulled, avoided and reversed, and the case remanded to be tried on its merits, with directions to the judge to cause it to be considered as an action for payment and compensation for services rendered to the defendant, without reference to the commission allowed by law to auctioneers, on the amount of sales by them made: and it is further ordered that the appellees pay the costs of this appeal.  