APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF LANCASTER COUNTY.

No. 54 July Term 1890, Sup. Ct.; court below, No. 99 August Term 1887, C. P.

On August 12, 1887, the defendants entered an appeal from the judgment of a justice of the peace, in an action brought by Daniel A. Mayer against Charles J. Rhoads and J. II. Herr, trading as C. J. Rhoads & Co., to recover commissions on a sale of tobacco for the defendants. Issue.

At the trial on December 5, 1889, the plaintiff testified that he was a commission merchant, and that in October, 1886, he had received a letter from one Beckman, of New York, and in consequence thereof he went to Mr. Rhoads, one of the defendants, and asked him if they had any 1881 tobacco, of certain grades, and informed him that he had an inquiry from Beckman; that Rhoads told him the price, and he communicated with Beck-man, who afterwards came on; that he saw Mr. Rhoads on the street and called him in to meet Beckman, and Rhoads told Beckman his samples were in New York and he would send to him an order to get them; that two or three weeks afterward he learned that Rhoads had sold seventy cases to Beckman, when he went to Rhoads and demanded his commissions, at $1 per case. The witness testified, further, that, five or six months before that transaction, he had sold tobacco to Beckman for defendants, and the latter had paid him his commissions on that sale. Mr. Rhoads testified that he had given no authority, employment or request to the plaintiff to make a sale of the last lot of tobacco to Beckman for him, and that he had made the sale himself.

At the close of the testimony, the court, Livingston, P. J., charged the jury as follows :

The performance of labor by one person for another, at his request, raises an implied promise to pay what such services were reasonably worth; [but mere voluntary services performed by one person for another, without precedent request, will not raise an implied assumpsit or a promise to pay.] 1

It is shown that, prior to this alleged sale Mr. Mayer had sold, by request of Mr. Rhoads, a lot of tobacco, in the spring or early in summer of the same year, for which Rhoads paid him a commission. But his being a commission merchant, or his having made a single sale, by request of Mr. Rhoads, for which he was paid a commission of $1 per case, would not constitute Mr. Mayer an agent of Rhoads & Co., or authorize him to proceed to sell for them, on commission or otherwise, unless requested so to do.

…

Citation profile

Relationships

How this case has been treated — in progress