Account of Tustin

Opinion by Mr. Justice Williams, The general rule regulating the allowance of commissions to an accountant was correctly stated by the learned judge of the court below. The circumstances that will justify an allowance in excess of 5 per cent must be such as show an unusual amount of labor. The evidence in this case made it very clear that the accountant exercised intelligent attention and the utmost good faith in the discharge of the duties he assumed by accepting the position-of assignee; but his principals were entitled to this. The faithful discharge of a duty affords no claim for an extra allowance. Extraordinary labor is the basis on which a claim for extraordinary compensation must rest, and we agree with [386] the learned judge in the opinion that the labors of the accountant, while they were efficient, faithful and successful, were not extraordinary in their proportion to the fund raised and distributed. The rate of commission allowed was, we think, a fair one under all the circumstances and we are not disposed to disturb it. The only point on which we are inclined to differ from the learned judge is in regard to the expense incurred in procuring the Guarantee Trust & Safe Deposit Company of the city of Philadelphia to become surety for the accountant upon his official bond. The auditor found in his ninth finding of fact that “ This item of expense and charge was agreed to be deducted as such by virtue of the deed of assignment, and the understanding of the parties; ” and in his nineteenth finding, that so much of the testimony of S. D. Rinard and J. H. Yastine as was against this view of the arrangement between the parties was the result of a mistake on their part. The learned judge in reviewing the auditor’s report held distinctly that “ it is further found that the preponderance of evidence justified the auditor in finding the fact that it was consented to, and agreed that the expenses of such suretyship should be deducted from the general fund; ” but he sets against this his own finding that there was a contract between the parties that, including this item, “ the whole expense attending the settlement of the estate by the assignee should not exceed 5 per cent.” We agree with the auditor that the-evidence, taking it most strongly against the assignee, does not show a contract such as the learned judge held to exist. It shows at most only the expression of an opinion or belief that the expenses of closing up the affairs of the deposit bank would not exceed 5 per cent. All that was insisted on was an expression of opinion by him as to the probable expense. He expressed the opinion that it would exceed 3 per cent, but would not exceed 5. We do not see that he was asked to guarantee the correctness of his estimate, or that his selection was conditioned upon his payment out of Iris own pocket of all expenses in excess of it. He should be allowed, under the findings we have referred to, the amount actually paid to secure the execution of his bond by the Philadelphia company, and with this modification the decree appealed from is affirmed. No order is made in regard to the costs of this appeal.