Cook v. Welch

| Mass. | Nov 15, 1864

Chapman, J.

The instruction given to the jury that the services proved by the plaintiff were sufficient to entitle him to recover the amount claimed if he was acting as a broker or agent for the defendants, employed by them, and that he could not recover unless he was so employed by them, by a contract express or implied, was sufficiently favorable for him. A ship broker recovers his commissions on the ground that he is an agent or middle man employed by the party. As such agent he brings the parties together, and his acts lay the foundation of the contract which they make. It is not necessary for him to complete the contract; but it is sufficient to entitle him to his compensation if they complete it. They may even employ another broker to complete it, yet he may recover. Nor is it necessary that there should be an express contract of agency.

The absence of an express contract is commonly supplied by proof of a usage regulating transactions of this character. Such proof was offered in the cases of Wilkinson v. Martin, 8 C. & P. 1; Burnett v. Bouch, 9 C. & P. 620. So in Winsor v. Dillaway, 4 Met. 221" court="Ky. Ct. App." date_filed="1863-06-04" href="https://app.midpage.ai/document/brown-v-commonwealth-7383432?utm_source=webapp" opinion_id="7383432">4 Met. 221, cited by the defendants’ counsel. So in Read v. Rann, 10 B. & C. 438. And it was there held that the broker’s claim for commissions was founded on custom, and that it was necessary to prove it. But the plaintiff in this case has offered no such proof. The letters produced indicate that the plaintiff was acting for the purchaser and not for the seller, apd no usage appearing by which in such cases the seller is to pay the commissions of the broker, the broker is not to be regarded as the seller’s agent. Exceptions overruled.