
    
      SENNETT vs. PIERCE & AL.
    
    East’n. District.
    
      May, 1823.
    Appeal from the court of probates.
    Evidence that a charge made in an account is the customary price in the city of New-Orleans is not proof of its correctness.
   Porter J.

delivered the opinion of the court. The petition was employed under the orders of the court of probates to make an ad-measurement and valuation of certain buildings, built by the late H. B. Latrobe, for which he claims from the curators of the estate $697 6 cents. This amount is claimed on the ground that the custom of the city is to allow workmen, or others, skilful in such labour as the petitioner was called on to perform, 2½ per cent. on the amount of the property valued and measured by them.

The curators admit his appointment, but aver that all the property estimated, did not belong to the deceased, and that the charge is exorbitant. The court of probates were of the same opinion, and gave the plaintiff judgment for $60 and costs—he appealed.

The testimony on the trial is contained in the declarations of four persons, who swear that the charge of 2½ per cent, on the value of the property estimated, is the usual charge of the city; that they have paid it, and one of them declares that the deceased himself charged that sum on an estimation made by him of work executed by the witness.

Hennen for the plaintiff, Carleton for the defendants.

None of the witnesses swear that the labour of the plaintiff is worth so much, or furnish us with any data, by which we can ascertain it. The question then is, whether we are authorized to infer the value of work and labour, from a custom to pay a certain price for it. We think not; for unless we admit the custom to have the force of law, the present defendants cannot be affected by what other persons think proper to pay. It is to them res inter alios acta.

There is nothing on record which enables us to see on what ground the judge fixed the compensation at $60. We are unable to affirm his judgment, and do therefore order, adjudge and decree, that the judgment of the court of probates be reversed, that this case be remanded for a new trial, and that the appellees pay the costs of this appeal.  