Gourjon v. Cucullu

Martin, J., delivered the opinion of the court. • The plaintiff alleges he undertook to attend to the sale of a cargo of slaves, received by the plaintiff on an agreement that [117] he should receive a commission of two per centum on the aggregate amount of the sales. He claimed said commission, and one of one per centum on the value of the slaves unsold and returned to the defendant, and a trifling sum for necessary advances made for the slaves. He had judgement for his whole claim, and the defendant appealed. An agree4*' ment for the price of services does not of tlieir value, a broker who undertakes to sell slaves for a certain commission on the aggregate amouilt písales, can claim none on the value of remain unsold ^d arereturn~ At the trial, his counsel objected to the introduction of evidence on the quantum meruit. His objection was overruled, and he took a bill of exceptions. The plaintiff’s counsel has shown, that in the case of Gilly et al. vs. Henry, 8 Martin, 402, we held that an agreement for the price of services does not preclude evidence of their value; in Boyd et al. vs. Howard, 3 id. N. S. 286, that the value of goods may be proved without a count on a quantum nabbant. Same case, 4 id. N. S. 178. It is therefore clear the parish judge did not err in admitting the evidence. The defendant’s counsel then contended that the parish judge erred in giving judgement for commissions on slaves sold by other brokers than the plaintiff, and half commission on slaves unsold and returned to the defendant. The testimony shows the whole cargo was placed under the care and management of the plaintiff. It is shown that those who thus take charge of slaves in this way, and attend to the sales, receive a commission of five per centum, and those who attend to the sales only, two per centum. The plaintiff employed and paid with the consent of the defendant, a person to assist him in the care and sale of the slaves. The plaintiff, as the parish judge has concluded, could not by occasionally selling slaves himself, deprive him of or reduce his commission. But we think the judge erred in allowing any commission for unsold slaves returned. The petition states an agreement for a commission for the care and sale of the i r i. i , . f. slaves, oi two per centum on the aggregate amount of the sales. He therefore cannot claim any commission on the J value of unsold slaves. The defendant is consequently entitled to a deduction of ninety dollars, the commission on nine thousand dollars, the supposed value of the slaves returned. [118] It is therefore, ordered, adjudged, and decreed, that the judgement of the Parish Court be annulled, avoided, and reversed, and that there be judgement for the plaintiff for four hundred and fifty-one dollars, with costs in the Parish Court, he paying them in this.