
    B. Mordecai vs. M. J. Jacobi.
    
      Contract — Broker—Commissions.
    Where the owner of slaves places them with a broker for sale, the broker is not entitled to commissions unless he makes the sale himself; if the sale be made by the owner, he is not entitled to commissions.
    BEFORE MUNRO, J., AT CHARLESTON, JANUARY TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “This was a summary process to recover forty-seven dollars and fifty cents, being two and a-half per cent, commissions on one thousand nine hundred dollars, the proceeds of the sale of' three slaves, viz.: Horace, his wife Matilda, and their son Horace.
    “It appeared from the testimony, that sometime in the month of November or December, 1858, the defendant placed the above named slaves in the hands of the plaintiff, who is a broker, for sale, and agreed to allow two and a-half per cent, commissions on the proceeds. The negroes were boarded by the defendant himself, but they .visited the plaintiff’s office almost every day, for nearly, if not quite, three weeks.
    “ The plaintiff was not limited to price — he, however, asked two thousand two hundred dollars, and made repeated attempts to sell them, but without success.
    “On the 14th of December, the defendant, without having .withdrawn the slaves from the plaintiff’s possession, and without any intimatien of his intention to dispose of them himself, sold them to the Bev. Mr. Lafar, for the above mentioned sum of one thousand nine hundred dollars, the amount on which the plaintiff now seeks to recover commissions.
    “ The Rev. Mr. Lafar testified, that on the 14th December, he had purchased the slaves in question from the defendant; and at the time of the purchase, was not aware the slaves had ever been in a broker’s hands for sale.
    “L. J. Moses, one of plaintiff’s clerks, testified, that when the slaves were placed in plaintiff’s hands, no entry of their names was made in the books. The reason he assigned for this omission was, that it was not the custom to make such entry, unless the slaves were placed on board with the broker, and in this opinion, as to the custom, he was corroborated by two other broker, Messrs. Ryan and Riggs. This witness further testified, that on the 24th of December, a few days after the plaintiff heard the slaves had been sold by the defendant, he was directed to make the entry in his book, a copy of which is attached to the process, as the cause of action.
    “ Messrs. Ryan and Riggs both testified the custom of brokers in such cases to be, that when slaves are placed with a broker for sale, if they are taken out of his hands by the owner and sold by the latter, no commissions are charged; but when the slaves are not formally withdrawn by the owner, and he disposes of them himself, in such case, the custom is to charge commissions.
    “I thought, that however clear might be the plaintiff’s right to recover compensation for whatever trouble he was put to in his efforts to dispose of these slaves, inasmuch as the sale had been effected by the defendant himself, and without the plaintiff’s agency, the latter was not entitled to commissions on the proceeds arising therefrom, and accordingly decreed for the defendant.”
    The plaintiff appealed on the ground:
    Because, as the slaves were sold without having been with-. drawn from the plaintiff’s hands, he was entitled to the usual commission, or a reasonable compensation for his services.
    
      Brown & Porter, for appellant.
    
      Buryea, contra.
   Cueia, per O’Neall, C. J.

When the A ct of the Legislature, directing that in cases under fifty dollars, half fees should be charged, was first brought to the notice of a venerable judge, he said that he had always thought “ the laborer was worthy of his hire, but the Legislature had taught him, he was only worthy of half hire.”

In the case before us he might have expressed his wonder that he who does nothing yet claimed full compensation.

In this case, the plaintiff did not sell ánd therefore did not earn commissions. The usage undertaken to be proved was not such an one as would entitle it to stand as law. It was merely that which some brokers thought right and pursued.

If the plaintiff was put to any trouble or expense about the slaves sent every few days to his office, he can, on making a proper case, possibly recover for that.

The motion is dismissed.

Johnston and Wardlaw, JJ., concurred.

Motion dismissed.  