42 S.E. 904 | N.C. | 1902
The plaintiff alleges that the defendants were her agents to collect rents for her houses, and had collected up to 31 December, 1894, the sum of $366.90, which is due her, but which they refuse to pay over. The defendants admit the retention by them of said sum collected by them as alleged in the complaint, but aver that the plaintiff owes them (461) for commissions and services for which they have retained said sum. The court properly held that the burden of proof was upon the defendants, for if no proof had been introduced on either side, upon the admission in the answer of the collection of $366.90 of plaintiff's money and retention of the same, nothing else appearing, the plaintiff would be entitled to recover. Cook v. Guirkin,
The defendants dissolved partnership and offered that one of them would collect part of the rents thereafter and the other the other part. The plaintiff declined this proposition and discontinued the agency, as she had a right to do. Abbott v. Hunt,
The only point in the case, therefore, is as to the right (462) to retain these commissions on future rents. These rents may or may not be collected. There was no contract shown authorizing such charge, and it would not arise by implication. The agents who shall hereafter collect them will of course charge therefor, and if the original agents can also charge that would throw an additional charge upon the owner whenever an agent is changed. It was in evidence for the defendants, by one of themselves: "We never had any formal contract of any kind. I was asked to take charge and collect the rents, and I did so, and retained five per cent in all cases," and this course of dealing had continued eleven or twelve years. On cross-examination he said it was usual to collect this commission "as the rents accrued," and that they had deducted five per cent on all the rents they had collected; that the $366.90 was five per cent on rents thereafter to accrue. He said that five per cent covered the trouble of securing a tenant and drawing up the lease, collecting and remitting rents and keeping a supervision of the property and keeping it in repair. As all these duties terminated with the termination of the agency, save the first named, there could be no implied contract or quantum meruit to justify a charge of five per cent on rents not yet accrued, and as the defendants' testimony fails to show that the plaintiff was informed of any custom to that effect, and there was no express contract authorizing it, his Honor properly sustained the demurrer to the defendants' evidence.
No error.
(463)