34 A.2d 39 | D.C. | 1943
For convenience the parties will be designated as in the trial court.
Plaintiff negotiated, in cooperation with defendant, a sale of certain real estate for which defendant had an exclusive agency. The contract of sale was drawn by defendant on its printed form, and contained this clause: “Amos W. McDevitt of Service Realty Company to receive one-half of commission.” The total commission was $465. Instead of paying plaintiff one-half of that amount, defendant first deducted a listing commission of $46.50, leaving a net of $418.50, of which $209.25 was paid the plaintiff. Plaintiff, claiming that the deduction had been improperly made, sued in the Small Claims Branch for the balance of $23.25. The trial judge ordered judgment for defendant. On plaintiff’s application we granted an appeal.
The record does not indicate that the trial judge gave any reason for his decision but recites only a general finding and judgment for defendant. We hold the ruling was erroneous.
Defendant produced one witness and by him sought to prove (1) that plaintiff had
1. If the trial judge predicated his decision on the testimony of defendant’s witness that he had informed plaintiff that the listing commission would first be deducted and the division made from the balance, the finding was erroneous. It did not take into account the written contract drawn by defendant on its own form and which recited: “Amos W. McDevitt of Service Realty Company to receive one-half of commission”.
2. If the trial judge based his ruling on the contention that it was the custom to deduct listing commissions before making a division between cooperating brokers, he was resting his decision on too slender a reed. Defendant’s one witness testified that it was the custom to make such deductions. Plaintiff not only denied that such a custom existed, but named three or four brokerage firms which he said did not make such deductions. That being so, the proof left the custom highly uncertain and therefore no custom at all. United States Shipping Board, etc., v. Levensaler, 53 App.D.C. 322, 290 F. 297, 301. In the case just cited it was held that a custom “must be certainly shown to be the general usage of the trade. * * * It must be definite, uniform, and well known, and should be established by clear and satisfactory evidence”. (Citing cases). The proof in this case met none of these tests.
The law on this point was summarized in an earlier Federal case,
Defendant argues that plaintiff had no right to recover because he did not allege and prove as required by the Code, Section 45 — 1407, that he was a duly licensed real estate broker or salesman. This point was not raised in the trial court and is presented here for the first time. It therefore comes too late. Depina v. United States, U.S.App.D.C., 137 F.2d 673, decided June 4, 1943; Meyer v. Capital Transit Co., D.C.Mun.App., 32 A.2d 392; District Hauling & Construction Co. v. Argerakis, D.C.Mun.App., 34 A.2d 31. Defendant insists that the point is “jurisdictional” because it relates to the plaintiff’s want of capacity to sue. On the authority of Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184, we hold that this objection avails defendant nothing, since it was not made in the trial court.
Reversed and remanded.
it is true that the contract was not signed by plaintiff, but the obvious purpose of the clause was for his protection.
Chicago, Milwaukee & St. P. R. Co. v. Lindeman, 8 Cir., 143 F. 946, 949.