
    Thomas Cochran vs. The Hon. Wm. Johnson.
    ’When aperson employs a vendue master to sell property, at a particular per centage .commission, tlie venclue master is not entitled to a per centage upon a bid not complied with. The object of the vem ■ dor is not accomplished, nor the duties of the vendue master per-; formed, until the conditions of the sale are complied with.
    THIS was an action brought to recover five per cent, commissions on the sale of several lots of land. The defendant, as executor of his father, wished to sell property to a considerable amount in the city of Charleston. He agreed to allow the plaintiff, who was a vendue master, twelve and a half per cent, on so much as he should sell. Several lots were accordingly sold at different periods, and the purchase money was received by the plaintiff. On the 24th June, 1818, other lots were offered for sale, and knocked off to Mr. L. at the price of $ 11,740 ; the purchaser refused to comply with the conditions of the sale, and the property was advertised under the vendue act tp be re-sold at the risk of the first purchaser. Before the, re-sale was effected, the plaintiff paid the defendant the sums which he had received for the lots actually sold, deducting therefrom not only twelve and a half per cent, commissions on the property so sold, but the same commissions on $ 11,740, the sum at which the last mentioned lots had been knocked off to Mr. L. After this, the property was advertised and re-sold, and brought $ 9,000; The purchase money was paid or settled for with the defendant himself. As the act directs, the vendue master commenced an action against Mr. L. for the loss and expenses sustained by his declining to comply with the conditions of the first sale, and for commissions. In the progress of this suit, it appeared that either Mr. L. was insolvent, or so difficult of access, that the plaintiff had little hope of recovering any thing from him; he therefore resorted to the defendant, and demanded five per cent, more as the commissions he was entitled to on the second sale. The defendant refused to comply with this, averring that the plaintiff had already retained more than he was entitled to; viz. twelve and a half per cent, on $11,740, when he ought to have retained only twelve and a half per cent, on $9,000. This action was accordingly brought for the five per cent, commissions on $9,000, to which defendant pleaded in discount $37 7-100, already overpaid.
    In conformity with the charge of the court, the jury found for the defendant, allowing him his discount.
    A motion was now submitted for a new trial, on the ground that the court misdirected the jury on the law.
   Mr. Justice Huger

delivered the opinion of the court:

The contract between the parties was, that the plaintiff should sell, and for so doing, the defendant should pay twelve and a half per cent, on what was obtained for the property; the object of a vendor is not accomplished, nor the duties of the vendue master performed, until the conditions of the sale are complied with. The defendant has pnly received $9,000 through the agency of the plaintiff; he is therefore entitled, according to their contract:, only to twelve and a half per cent, on $> 9,000. Should he recover the difference between $> 9,000 and 11,740, the first’ bid from Mr. L. the plaintiff may then be entitled to twelve and a half per cent, on that difference but assuredly the defendant ought not to pay five per cent, commissions on $ 9,000, because the plaintiff has procured fob the property a purchaser who will not or cannot comply with the conditions. How has the defendant been benefitted by that sale? So far from deriving any benefit from it, he was very much delayed in the attainment of his object. It is true the vendue master was put to additional trouble, but this was not the fault of the defendant; when a specific sum is to be paid for the performance of a specified work, as building a house, or making a coat, the builder or tailor cannot say after the work be done, you must pay more, for it has cost me more labour than I expected. . So in this case, the plaintiff was to' procure for the defendant, the value of the lots in money, or the price at which they would sell at vendue, for which he agreed to receive two and a half per cent, more the plaintiff is not entitled to, and the discount was properly allowed.

Rescmssure, for the motion.

Simons, contra.

The motion must therefore be dismissed.

Justices Colcoc/c, - Gantt, Richardson and Johnson, concurred.  