Epitomized Opinion

This was an action in the Common Pleas to recover $3,000 as commission for the sale of steel. Whitesell, a broker, claimed he had a verbal agreement with the King Bridge Company whereby he was to sell some steel and receive the usual and customary commission therefor, to-wit, $5.00 per ton. The steel in question was subsequently sold by defendant to .the Fuller Company. The only evidence of an oral contract or a custom was the testimony of plaintiff. And, the only evidence in support of such a custom was that another company had paid plaintiff such a commission. The court charged that the measure of damages would be the amount agreed upon by the parties for the services, in the event the jury should find for the plaintiff. The plaintiff secured a verdict for $3,000. In reversing the lower court, the Court of Appeals held:

1. In order to establish a custom to pay commission on such contracts, the custom must be either known to the parties, or so general and well established that knowledge will be presumed.

2. Where the evidence does not establish a general and well established custom as in this case, a verdict in favor of the plaintiff must be set aside as contrary to the evidence.

3. As the action was not on a definite contract, the court’s charge was faulty in failing to state that the measure of damages was the usua land customary commission in such cases.