*452cpi:íio:í.

On I,lay 17th 1918. the deceased addressed a latter to l»o Bellman, opponent herein, authorizin'’ vim to lease to the liberty Stores, Incorporated, oertoin property for r term of years, ftg rental to be one per cent per month of the estimated value of said premises, towit, }7P,00 for the ground and approximately -5&000 for the building v/hioh the deceased agreed to erect and deliver on or about February 1st 1919; and therein the deceased agreed to pay Fallirían a oommission of Z'jj on the gross amount of the leaso.

Four days later j?eliman confeoted a written lease in exact accordance with his instructions; which lease was duly approved and signed by the liberty Stores and by the deoeasod. But for reasons satisfactory to himself the lessor failed, nogleotod or refused to ereot the building agreed upon, notwithstanding repeated requests made upon him by, or on behalf of, the tenant; and thus the latter was never able to enter ujion the promises, possession whereof was retained by the lessor and his heirs.

Bellman seeks herein to recover the commission promised, and his claim is contested on the ground I. That the instrument called a lease was no^4uch in law, the rent not being fixed and oertain; and 2. That the deceased was not put in default.

*4531,

We think that Tinder the muxira "Id certun est quod eertum fieri potest", a rental fixed at a certain percentage of the value of a lot of ground and the cost of a building to he 'erected thereon is certain; being quite as certain us " a portion of tho fruits yielded by the thing leased". C. C. 2671. See also, N. & O. R. R. vs Tennessee, 153 U. S. 406; U. S. vs Smith, 5 Wheaton 69. For it is clear that ohce the building had been erected and its cost established, a ten year old child could have figured the amount of the failure, neglect or refusal of the deceased to orect the building, the exact cost thereof cannot now be established neither he nor his heirs can ooraplain that his ov:n estimate of the cost should be pcoopted as the basis of this claim since he has put it out of tho power of tho other parties to make that cost more certain. See Steppach vs Worms, 7 Orleans App 214; Rightor vs Aleman, 4 Rob 45.

But whether the contract between tho deceased and the liberty Stores, be or be not technically a lease, it was none the lesa a perfectly legal and valid contract even though innominate, Blouin vs Hebert, 134 La 423; Thielman vs Gahlman, 119 La 350; Phelan vs Wilson, 114 La 813. And it is quite certain that it was the very oontraot which the deoeased authorized and approved, and for tho proouring of *454which ha promised to pay the commission herein claimedit follows that Reliman had earned his commission as soon as he had obtained the consent and signature of the parties. Slattery vs Hussey, 4 Orleans App. 65; Roberts vs Thomas, 8 Orleans App 211; Gurley vs Parkinson vs Loeffler, 14 Orleans App 424; Succession of Fairchild, No. 7848 our docket.

XX.

It Is urged that the deoeased and his heirs are not liable £qe commissions because they were never put in default by the liberty Stores. But the falacy of this contention lies in this; that Reliman has no concern with, the contract between the deceased and the liberty Stores; and whether the parties thereto do or do not stand up for their rights thereunder cannot interest him. He is not suing upon that oontraot, but on that of May 17th by which the deeeased promised to pay him a commission for certain services which he was to render and did render; and for which he is entitled to be paid. It is quite immaterial that the deceased aftorwards backed out of the contract and that the other party took no legal steps to hold him to'it; the fact remains that he aocopted Rellmanrs services and promised to pay for thorn, and thorn is no good reason in law or in equity why he should not do so.

¶& think- the judgment appealed from la oorreot,

Judgment Affirmed.

- Haw Orleans la,