
    [No. 13067.
    Department Two.
    April 1, 1916.]
    Sylvester Wilkins, Respondent, v. H. P. Kessinger, Appellant.
      
    
    Custom and Usages — Contracts—Admissibility. Evidence of a local custom or usage is inadmissible to support the claims of either party as to the terms of a contract that is not ambiguous or of doubtful meaning.
    Same — Pleading—Necessity. Evidence of a local custom or usage to divide a broker’s commission is inadmissible in an action on implied contract, unless the existence of the custom is specially pleaded.
    Brokers — Commissions—Division. The rule for the division of a broker’s commission where two brokers cooperate in effecting the sale is not applicable where one broker took no part in accomplishing the deal, but only listed the property with the other broker.
    Appeal from a judgment of the superior court for Pierce county, Card, J., entered November 9, 1914, upon findings in favor of the plaintiff, in an action to recover a broker’s commission, tried to the court.
    Reversed.
    
      J. B. Keener, for appellant.
    
      A. H. Garretson, for respondent.
    
      
      Reported in 156 Pac. 389.
    
   Main, J.

This action was brought for the purpose of recovering one-half of the commission earned upon a real estate transaction. The cause was tried to the court without a jury, and resulted in a judgment in favor of the plaintiff for the sum of $113.75. From this judgment, the defendant appeals.

The appellant construes the complaint as alleging an express contract for an equal division of the commission. The respondent construes the complaint as an implied contract, at least in so far as it pertains to the manner of the division of the commission. In the complaint, there is no allegation of a local usage or custom among real estate brokers in the city of Tacoma as to how the commission shall be divided when two brokers cooperate in the sale, and there is no express agreement. Upon the trial, the respondent offered evidence for the purpose of showing that there existed among real estate men in that locality a custom or usage by which, in the absence of a special agreement, the commission earned was to be equally divided between the two brokers. This evidence was admitted over objection. Construing the complaint as alleging an express contract for an equal division of the commission, the evidence of a local custom or usage was inadmissible. The rule is that, where the terms of the contract as alleged are not ambiguous or of doubtful meaning, evidence of a local custom or usage is inadmissible for the purpose of supporting the claim of either party as to what the terms of the express contract were. Vollrath v. Crowe, 9 Wash. 374, 37 Pac. 474; Williams v. Ninemire, 23 Wash. 393, 63 Pac. 534; Peyser v. Western Dry Goods Co., 53 Wash. 633, 102 Pac. 750.

In the Williams case, it was said:

“It is only where a contract is silent in some particular or is ambiguous that proof of custom is admissible, and such proof is then admissible only for the purpose of finding out what the contract really was, and not to overthrow it. Proof of custom is received in such cases upon the assumption that, as to those matters not covered by express stipulations in the agreement, the parties are presumed to have made their contract with reference to the established custom and usage of that place; and these the law will incorporate into the contract, in order to explain or complete it. But it is always within the power of the parties to exclude custom from their dealings by their express agreement, as was done in this case.”

Construing the complaint as not alleging an express agreement for an equal division of the commission, but as relying upon an implied contract as to the manner of the division, the evidence of a local custom or usage was inadmissible, because the existence of such local custom or usage was not pleaded.' The rule is that a local custom or usage, applicable to a special or particular business, must be pleaded before evidence is admissible to show the existence of such custom or usage. Pittsburg Steel Co. v. Streety, 61 Fla. 393, 401, 55 South. 67; Lindley v. First Nat. Bank of Waterloo, 76 Iowa 629, 41 N. W. 381, 14 Am. St. 254, 2 L. R. A. 709; Hayden v. Grillo’s Adm’r, 42 Mo. App. 1; First Nat. Bank of Hastings v. Farmers’ Merchants’ Bank, 56 Neb. 149, 76 N. W. 430; Wilmington City R. Co. v. White, 6 Penn. (Del.) 363, 66 Atl. 1009; Smith v. Stewart, 29 Okl. 26, 116 Pac. 182; 6 Standard Ency. Proc. p. 331.

In the cited volume of Standard Ency. Proc., at page 331, the rule is stated in this language:

“A local custom or usage, or a custom or usage applicable to a special or particular business, may not, as a general rule, be made the basis of recovery in an action, unless such custom or usage is pleaded by the party relying on it.”

While there is doubtless some authority to the contrary, it would seem that this rule is founded in reason. If the local custom or usage which is to be relied upon is pleaded, the opposite party is advised of the contention, and may prepare to meet it. If it is not pleaded, the evidence thereof, when offered, may come as a complete surprise. The decision upon this question is decisive of the action. It becomes unnecessary to review the evidence.

It may be remarked, however, in passing, that in this case, even though the evidence had been admissible under the pleadings, it is doubtful whether it would sustain the existence of a local usage or custom which would entitle the respondent to recover. Running through much of the testimony offered of the custom or usage, there were two elements which are not applicable in this case: One was the assumption that the same rule of division would obtain for securing a listing of property that would obtain when two real estate brokers cooperate in effecting a sale. The other was that the respondent and the appellant had worked together in accomplishing the sale in which the commission was earned over which this dispute arose. In this case the respondent caused the land of one of the parties to the exchange to be listed in the appellant’s office. The evidence fails to show that he had any part in bringing about the sale, which occurred more than a year thereafter. It is quite apparent that the rule of division, as applied when two parties cooperate in effecting a sale, would not be applicable when one party took no part in accomplishing the deal, but only caused the property to be listed in the office of the other.

The judgment will be reversed, and the cause remanded with direction to the superior court to dismiss the action.

Morris, C. J., Holcomb, Bausman, and Parker, JJ., concur.  