
    The Metropolitan Bank & Trust Co. v. Newcomb & Jenkins.
    
      Custom and usage — Not binding, when — Commissions for leasing-Action will not lie, when.
    
    The custom of a locality with reference to commissions for leasing property is not binding upon a properly owner who has no knowledge of such custom, and an action docs not lie for recovery of such a commission where it is not based on a contract, express or implied.
    (Decided June 21, 1913.)
    Error : Court of Appeals for Hamilton county.
    Jones, O. B., J.; Swing and Jones, E. H., JJ., concurring.
   The action below was brought to recover a real estate commission for the securing of a lease on rooms used by a Chinese restaurant. The evidence shows that one of the members of the firm of real estate agents made the acquaintance of two Chinamen who were seeking quarters for a high-class restaurant in Cincinnati, and proceeded, to try to find suitable quarters. Noticing that the rooms above plaintiff in error’s bank were unoccupied, inquiry was made of the cashier of the bank whether they were for rent and the terms. The agent introduced himself to the cashier by handing him the card of his firm, showing they were real estate agents.

There is no testimony in the record to show that at any time any conversation was had between plaintiffs and defendant indicating that a commission was to be charged the bank for the securing of a tenant for it, and the attitude of the plaintiffs below throughout the transaction appeared to be as representatives of the lessee. The lease was finally consummated, and defendants in error seek to collect commissions fixed by the rule of the real estate exchange of which they are members, claiming that the rule of the real estate exchange has created a custom of the locality upon which they are entitled to rely.

'file record shows- that this custom was not known to Mr. Morrison, who represented the bank, nor was it brought home to any officers of the bank during any of the negotiations. Objections were made to the introduction of proof as to the custom unless knowledge was shown by the defendant lie-low of its existence. We are of the opinion that it was error in the court below to allow such evidence to be introduced, there being no evidence sufficient to establish an implied contract between the parties.

There is no question but that defendants in error did represent the lessees; and. that being the case, if they assumed to represent — as they claim in this suit they did — the lessor, then it was error in the trial court to refuse the special charge which was asked by plaintiff in error before submission to the jury, which was as follows:

“A real estate broker who assumes to act for both parties can not recover compensation from either party, even on an express promise, until it is clearly shown that each party had full knowledge of all the circumstances connected with his employment by the other which would naturally affect his action, and had assented to his double employment.”

Messrs. Bode & LeBlond, for plaintiff in error.

Mr. C. J. McDiarmid, for defendants in error.

See cases of Bell v. McConnell, 37 Ohio St., 396; Capener v. Hogan, 40 Ohio St., 203.

Defendants in error, however, rely upon a contract with plaintiff in error. The record fails to show that.any contract was entered into by them with plaintiff in error, either express or implied. A motion was made by defendant below at the close of all the evidence for an, instructed verdict in its favor, and this court is of the opinion that it was error in the court below to refuse said motion.

The court therefore is of opinion that the judgment below should be reversed, and that judgment should be entered here for plaintiff in error.

Judgment reversed, and judgment for plaintiff in error.  