
    LEEDS against BOWEN
    
      New York Superior Court; General Term,
    
      May 1863.
    Auctions and Auotioneees.—Commissions.—Intebbupted Sale.
    Under the statute “of sales by auctioneers,” (1 Rev. Stat.} 528), an auctioneer is entitled to no compensation for his services, in the matter of a sale which he is employed to make, except two and one half per cent, on the amount of the sale made by him, unless a written agreement for more be previously made.
    The services mentioned in the statute, for which two and one half per cent, is a compensation, are not merely the actual offering the goods for sale, and striking them off, but include also the duties incidental thereto, customary and necessary to secure a successful sale.
    An auctioneer who is employed to sell a stock of goods upon an oral agreement for a compensation greater than two and one half per cent., and who is stopped, after selling a part, by the employer countermanding the sale, is not entitled to recover commissions at the rate agreed, on the value of the whole stock of goods.
    Exceptions taken on the trial and directed to be heard in the first instance at general term.
    The action was brought by Henry B. Leeds, and Allen B. Miner, on a contract by which the defendant, Sidney W. Bowen, had employed them as auctioneers to sell a stock of goods.
    The cause was tried on the seventh day of March, 1862, before Mr. Justice White, and a jury. The facts are stated in the opinion of the court. It.may be added, that the plaintiff Miner testified that "About the first of ¡November, Mr. Bowen called upon us .and engaged us to make a sale of his property. * * * He wished us to take charge of the sale, and do everything in our power to make it a successful sale, stating that he would advertise it specially himself, and would either have his catalogue printed, or that it was in process of printing. He wished us to perform all the necessary duties with that exception, and asked me what we would do it for the lowest, and I told him we would provide the proper clerks, distribute Ms catalogues, and take all the necessary and incidental action to make it a successful sale for five per cent., if that should be the amount of the sale.” Another witness testified that Mr. Miner told the defendant that if the sale amounted to ten thousand dollars, he would distribute the catalogues he intended to have made out for paper and paper hangings, and would put in his general advertisement, and furnish the clerks, and perform all the duties of the sale for five per cent.
    The testimony on the part of the defendant, did not conflict. with this, except in contradicting that he agreed to sell the whole stock,-or any particular amount.
    The counsel fqr the defendant requested the judge to charge the jury that unless there was an agreement in writing, made between the parties,, the plaintiffs were not entitled to recover- a greater amount than two and a half per cent., upon the amount of the sales actually made by them.
    The judge refused so to charge; to wMch refusal the counsel for the defendant excepted.
    The judge charged the jury that an agreement in writing was not necessary for such a service as the plaintiffs undertook to perform for the defendant. They might make the agreement verbally; when the service, as proved to be here, was more than the special services wMch the statute contemplates, an agreement made verbally was binding upon the parties; and he therefore directed the jury to render a verdict for the plaintiffs for five hundred dollars; to which charge the counsel for the defendant excepted.
    The jury found a verdict accordingly, and the judge further ordered that the exceptions taken herein be heard in the first instance at the general term,'
    
      
      G. Tillotson, for defendant, appellant:
    
      Cited Laws of 1817, 326, ch. 275; 1 Rev. Stat., 3 ed., 648, §§ 27, 28.
    
      E. D. Mills, for plaintiffs, respondents.
    The statute (2 Rev. Stat., 5th ed., p. 463, § 36,) has no application to this case. (1.) This action is not brought to recover commissions on sales, but for damages arising from a breach of contract. (2.) The statute is intended to apply to sales actually made; the construction claimed by the defendant might be the true one, if the action had been brought to recover more than two and one-half per cent., on any sales actually made. The utmost that could be claimed in this case would be, that the plaintiff should be limited in his recovery to two and' one-half per cent., on ten thousand dollars. (3.) The construction given to the statute was the right one.
    The statute, in limiting the compensation to two and one-half per cent., on the amount of any sales, has reference to the simple duty or act of crying off the goods. Any other service or means by which a sale is made more successful, such as the reputation of the auctioneer, the bidders whose attendance is procured by such reputation, advertising the sale, distributing catalogues, making out the bills, collecting them, and paying over the money, taking the risk of bad money and bad debts,—all these,, are the proper subject of a contract for greater- compensation. This was the agreement in this case.
   By the Court—Barbour, J.

J.—By the pleadings and evidence in this case, it appears that the defendant employed the plaintiffs, who were auctioneers in the city of New York, to sell his stock of paper hangings at auction, upon a representation that such stock was inventoried at some eighteen or twenty thousand dollars, and would sell at auction for ten thousand dollars, for which the plaintiffs were, by the agreement, .which was entirely oral and not in writing, to receive five per cent upon the sales, for their compensation; that the auction sale contemplated by the agreement was actually commenced, and, after about ninety dollars’ worth of goods were sold, such sale was stopped by the defendant, for the alleged reason that he had disposed of the remainder of his stock at private sale. The court held that the plaintiffs were entitled to recover five per cent, upon the whole ten thousand dollars, and directed a verdict accordingly; to which the defendant excepted.

The thirty-sixth section of the statute “ of sales by auctioneers” (2 Rev. Stat., 5th ed., 463), declares that “ no auctioneer shall demand or receive a higher compensation for his services, than a commission of two and one half per cent, on the amount of any sales, public or private, made by him, unless by virtue of a previous agreement in writing, between him and the owner or consigneeand the thirty-seventh section imposes a penalty of two hundred and fifty dollars, for a violation of the provisions of section 36.

The services mentioned in the act, are not, merely, the offering of the goods for sale, and striking them off. ■ Indeed, the auctioneer need not sell at auction at all; but may dispose of them at private sale (§ 36). In addition to selling the goods, it is also, under the statute, the duty of the auctioneer, as such, to advertise the proposed sale in a newspaper (§ 34), and, in case the purchase money shall not be paid immediately, he must enter the sale, with all necessary details, in a book to be kept by him for that purpose (§ 39); and he is also required to have a store or auction house for his business (§ 30).

But, aside from the statute, an auctioneer, like any factor, is bound by his undertaking to sell goods, to take all such proper and incidental steps, to insure a successful sale, as is customary and necessary. If, in performing those incidental duties, any expenses are incurred, such expenses will be properly chargeable against the owner; but the auctioneer is entitled to no compensation for his services in the matter of the sale or its incidents, except the two and a half per cent, fixed by the statute, unless a written agreement for more shall previously have been made. Any agreement providing for a commission exceeding two and a half per cent., unless the same shall be in writing, whether under pretence of covering moneys expended by the auctioneer, or his services, is, therefore, either an evasion of, or contrary to the statute, and is void.

In this case, the action is brought upon the agreement to sell the merchandise at auction, and nothing else. It is not pretended in the complaint that any services were to be, or were performed for the defendant by the plaintiffs, beyond selling a portion of the goods; nor does the evidence show that any other services were rendered.

For these reasons, I think the direction of the justice was erroneous; and that the verdict should be set aside, and a new trial granted, with costs.

Monell, J., concurred. 
      
       Present Barbour and Mohell, JJ.
     