Hull v. Cardwell

That the defendant collected $166.66 Tent for the plaintiff is conceded. The question in dispute is whether, upon a rental of six months and five days, .at the rate of $1,000 per year, the defendant is entitled to "brokerage at 2J per cent, on $500, the rental for the term, or to brokerage at that rate for an entire year. The evidence satisfies me that in the absence of an express agreement, the customary rule is to allow percentage on the actual or agreed rental. This custom is reasonable and fair, and hence legal. To give effect to a special custom to charge commissions on rent for a period of time extending beyond the term of the léase, would be to allow compensation on a theoretical, constructive or imaginary "basis rather than on that fixed by the deliberate agreement of the contracting parties. Such a peculiar custom *77is unreasonable, and cannot be enforced in the absence of proof that the plaintiff knew of its existence (Boardman v. Gillard, 1 Hun, 22); Bassett v. Lederer, Id. 280). The defendant has no doubt acted in good faith, and under the belief that his counter-claim was just.

The plaintiff is entitled to judgment for $166.66, less x$12.87 commission at 2| per cent, on the rent for the term, to wit, $153. Y 9.