#### David Rait, Respondent, *v.*N. Leslie Carpenter, Joseph N. Carpenter, Atmore L. Baggott and Sterrett Tate, Copartners, Doing Business Under the Firm Name and Style of Carpenter, Baggott & Co., Appellants.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Work, labor and services — reasonable value of — performance of — evidence.

A plaintiff, to be entitled to recover the reasonable value of services rendered, must show that he actually performed said services for defendants at their request, or that they accepted services rendered by him in circumstances which raise the implication of a promise to pay.

While the mere fact that plaintiff *“*gave up *”*the defendants’ name on business which he controlled, and that they accepted contracto, might raise an implied promise on their part to pay plaintiff for his services, circumstances may rebut any such promise.

The evidence in an action by a member of the Cotton Exchange to recover the reasonable value of services alleged to have been rendered at defendants’ request in procuring for them certain business on the Exchange controlled by plaintiff, considered, and held to rebut the presumption of an implied promise to pay therefor.

Appeal by the defendants from a judgment of the City Court of the city of Few York entered upon the-verdict of *386a jury rendered in favor of the plaintiff, and from an order denying a motion for a new trial.

John R. Abney (Wm. St. J. Tozer, of counsel), for appellants.

John Thomas Smith, for respondent.

Lehman, J.

The plaintiff sues for the reasonable value of services performed at the defendants’ request in procuring for defendants the business of Latham, Alexander & Company. The complaint sets forth that the reasonable value of these services was the sum of $2,087.25, which sum was the amount due from the defendants pursuant to the custom of the Exchange. The complaint then sets forth that *“*there existed among members of the Exchange a custom that, for business received from a fellow member, the receiving member should allow and pay to said member $3.00 as the member’s commission and $.75 as floor brokerage on each 100 bales of cotton bought or sold for customers purchased as aforesaid.”

At the trial the plaintiff sought to prove his case by showing that he was a member of the Cotton Exchange, and that he bought and sold cotton for one Gaylord, doing business under the name of Latham, Alexander *&*Company. In these transactions he acted as “ floor broker ” for his principal; *i.*while he bought and sold cotton on the floor of the Exchange, he did not make the contracts in his own name, but, before the time arrived to sign the actual contract, he would “ give up ” to the person with whom he dealt the name of another broker who would sign the contract. The second broker, who signed the contract, would then, under the rules of the Exchange, he the only person recognized by the other party as the person actually responsible for the contract, and he would also be the person entitled to look to the *“*floor broker’s ” principal for commissions and for security. The plaintiff was permitted by Latham, Alexander & Company to “ give up ” the names of any other brokers upon their order, and Latham, Alexander *&*Company then became the principal of the second broker. *387On May thirty-first the plaintiff bought and sold several hundred bales of cotton for future delivery, and “ gave up ” the name of Carpenter, Baggott & Company, who signed the actual contracts. Thereafter, for some months, he continued to “ give up ” the name of Carpenter, Baggott & Company for large amounts" of purchases and sales which he made for Latham, Alexander & Company. He had no previous conversation with these defendants, by which they authorized him to *“*give up ” their name, or by which they agreed to pay him any commission for procuring for them this business. It is not disputed that, under the rules of the Exchange, the plaintiff is entitled to the sum of seventy-five cents per 100 bales for acting as floor broker, but he claims that the defendants, by accepting the transactions in which he “ gave up ” their name, are also obligated, under a custom of the Exchange, to pay him the sum of three dollars per 100 bales for procuring the business of Latham, Alexander & Company for them. He testified that the custom of the Exchange is that “ When a member obtains business for another member of the Exchange from a party who is not a member of the Exchange, it is" customary to allow the member obtaining the business a commission of three dollars for buying and three dollars for selling a hundred bales of cotton.” At the trial several other brokers of larger experience than the plaintiff denied that this custom exists, and claimed that the member procuring business and giving up another member’s name was entitled to no payment, except by special agreement. Conceding, however, that the jury had a right to find that, where no special agreement is made, the member procuring the business is entitled to an allowance of three dollars per 100 bales, I still think that the verdict of the jury must be reversed.

The plaintiff sues for services performed at the request of the defendants, and, before he can recover, he must show that he actually performed services for them at their request, or that they accepted services rendered by him under circumstances that permit the law to raise the implication of a promise to pay. Ordinarily, the mere fact that he “ gave up ” the defendants’ name on business which he controlled, *388and that they accepted these contracts, might perhaps raise an implied promise to pay for his services. Ho such promise, however, can be implied when the circumstances rebut any such implied promise, and, in my opinion, such circumstances clearly exist in this case. The plaintiff, for the purpose of showing that he did actually control the business of Latham, Alexander & Company, produced as his witness Gaylord, the owner of that business, and Gaylord testified that, previous to Hay thirty-first, a man named Blalceney came to his office, and, stating that he was in the defendants’ employ, asked him to assist him in getting business for the defendants. Gaylord stated that it was in plaintiff’s discretion to give out their business, and he then told Blalceney that he would ask plaintiff to give defendants some of their business. He further testified that he asked plaintiff thereafter to do so. It must be remembered that this conversation represents the inception of a practice of Bait’s giving up defendants’ name on purchases and sales made by him for Gaylord, doing business under the name of Latham, Alexander & Company, and that he never was directly authorized by the defendants'to give up their name, though necessarily giving up the name of another broker involved the consent of that broker, for, by signing the contract, the second broker assumed a risk and must, therefore, first approve the responsibility of the principal whose business he thereby secured. It was fair to assume, therefore, that, when plaintiff “ gave up ” the defendants’ name, he was acting as a result of the conversation previously held between Blalceney and his principal. Under such circumstances, even if the plaintiff actually controlled the business of Gaylord, and in a sense procured it for the defendants, the defendants had a right to assume that the business was procured by Blakeney, and though they actually may have accepted plaintiff’s services, they did so without knowledge that he had procured the business, and under circumstances that justified them in believing that these services were not rendered with the expectation that he would be paid the customary commission, and that, therefore, rebut the presumption of any implied promise to pay.

*389It is true that the evidence shows that in July the .plaintiff rendered a bill to defendants, including an item of $96 for commissions for procuring this business during the preceding month, and that the defendants paid this bill. This payment is, however, merely an admission which the defendants had a right to explain, and when the plaintiff’s whole evidence shows that the defendants were never obliged to pay him these commissions, and the defendants explain that the bill was paid by mistake, their explanation cannot be lightly disregarded.

It follows that the judgment must be reversed, and a new trial granted, with costs to appellants to abide the event. -

Page and Hotchkiss, JJ., concur.

Judgment reversed and new trial granted, with costs to appellants to abide event.