
    Albert Russell Metz, Respondent, v. The Campbell Printing Press & Manufacturing Company, Appellant.
    (New York Common Pleas — General Term,
    February, 1895.)
    In an action for money had and received on foreclosure of a chattel mortgage held by defendant on plaintiff’s chattels, plaintiff claimed to recover §202.77, being the difference between the amount deducted for expenses of the sale and five per cent of the proceeds, which plaihtiff alleged had been agreed upon as the limit of such expense. The making of such agreement was the only question litigated and submitted to the jury, which returned a verdict for plaintiff for ninety-one dollars. Held, that such verdict and the judgment entered thereon were not secundum allegata et probata.
    
    Appeal from a judgment for the plaintiff, which was rendered upon a verdict in his favor; also from an order denying the defendant’s motion for a new trial.
    Action in assumpsit to recover moneys alleged to have been had and received by the defendant to the use of the plaintiff.
    
      Elgin L. McBurney, for respondent.
    
      Gluts. Be Hart Brower, for appellant.
   Bischoff, J.

The plaintiff was the owner of a printing establishment, the chattels appurtenant to which were mortgaged to the defendant. It was mutually agreed by the parties that, for the' purpose of paying the debt, the chattels should be sold under a foreclosure of the mortgage, which latter contained a clause to the effect that upon such a sale the mortgagee should be entitled to deduct from the proceeds for necessary expenses “ lawyers’ fees and commissions for making sale.” '. The plaintiff contended that it was also agreed at the time that the expenses of the sale should not exceed five per centum of the proceeds, but this the defendant disputed. The proceeds realized and received by the defendant amounted to $2,926.42, from which it deducted $292.60 for auctioneers fees and $56.50 for attorney’s fees, an aggregate of $349.10, having sufficiently accounted to the plaintiff for the remainder. " This action was brought to recover the difference between the sum deducted and five per centum of the proceeds of the sale, to wit, $202.77. The only issue created by the pleadings was with regard to the making of the alleged agreement of five per centum of the proceeds for the expenses of the sale. No other issue was litigated upon the trial by consent of the parties, manifested either by inference from the evidence admitted or the character of the objections made, or from an expressed stipulation or amendment of the pleadings to such an effect (Frear v. Sweet, 118 N. Y. 454); and the only question submitted by the learned trial judge to the jury was whether or not the alleged agreement was made. The jury rendered a verdict for the plaintiff in the sum of ninety-one dollars, upon which judgment was rendered, from which, as ' well as from an order denying its motion for a new' trial, the defendant appealed.

Obviously the verdict and judgment transcend the rule that the recovery must be seotondum allegata et probata. Fuld v. Kahn, 4 Misc. Rep. 600; Pionier v. Alexander, 7 id. 709. Upon the pleadings and the evidence the verdict should have been either for the plaintiff, in the amount claimed, or for the defendant. The jury might well, upon the conflict of evidence which ensued upon the trial, have found either way; but they could not, with consistency, find both ways. A, verdict which repudiated the alleged agreement, and yet awarded any recovery to the plaintiff, was manifestly unjust to the defendant.

Neither can the verdict be- supported upon any hypothesis that-the defendant’s deduction of ten per centum of the proceeds of sale involved an excessive charge for the auctioneer’s services because in contravention of the statute which limits the commissions for such services to two and one-half per centum in the absence of the owner’s written agreement to pay a greater sum. 2 R. S. p. 1275, § 23, Banks & Bros. 7th ed. The award is incompatible with computation at the statutory rates of commissions, and the record is destitute of •all evidence tending to show the customary, or fair and reasonable expenses to be incurred in cases of like sales.

The jury disregarded the plain instructions of the trial judge.- '

Judgment and order appealed from reversed and new trial •ordered, with costs to the prevailing party to abide the event. ■

Pryor, J., concurs.

Judgment and order reversed and new trial ordered, with costs to abide event.  