*Camden.*

Heard before Chancellor Desaussure.

.'íssx\;.

#### R. Harrison, et al. *vs.*Long, Executor of Hubbard Rees.

Commissions allowed to an agent, employed to transact business and make sales of property, though, there was no stipulation in the agreement tar commissions.

The agent receiving money, and not applying it to the purposes specified in the agreement, under which he acted, within a reasonable time, is chargeable with interest. Costs to be paid by the a gen!

*111Tira following report of the commissioner was sub-milted at the hearing of this cause : \

JUNE, 1810.

In pursuance of the order of reference in this case, ilie commissioner lias proceeded to an examination of the matters so referred, and from the evidence before him, reports the following facts :

First. — That upon charging the defendant with the several sums received by his testator, on sales of Hol-zendorf’s and M’Coy’s property, and deducting therefrom his own payment of 2501. on Smith’s execution, amount of Yeadon’s judgment and sheriff’s fees incurred, there appears to be a balance in defendant’s hands, including interest up to this date, of 1591. Ss. *ScL*applicable to complainant’s demand.

Secondly. — That the complainant’s demand, with interest thereon up to this date, amounts to 5661. 18s. iOd. from which the foregoing sum being deducted, there remains a balance of 4071. 15.S. *7d.*unprovided for.

B. Bjneiiam, *Com.*

The defendant’s counsel filed the following cxcep-i ions to the above report:

First. — ’Because no commissions or credit has been allowed for labor and services in the resales of the property of J. Holzcudorf.

Secondly. — (Omitted.)

Thirdly. — Because there is allowed to the complainant, interest upon the balance of monies received by Hub-hard Rees.

The court, after argument, pronounced the following decree:

This case comes on upon the commissioner's report and exceptions thereto, which bring the precise questions in dispute before the couri. The commissioner reports in a very clear and distinct manner the transactions of Mr. Rees, and makes a statement founded upon the agreement of the parties and the evidence furnished, by which it appears that there is in ttie hands of the executor, Mr. Long, the sum of 159Z. Ss. 3d. including interest, applicable to the reimbursement of Mr. Harrison *112and Sir. Pcay under the agreement 5 and that there re-, mains a balance oí’ 407f. 1 Cs. 7ti. which ought to bo paid by the executor of flees, provided the lands or cs-tale of Kolzendorf, in his hands, can be made available for s¡> much, which is uncertain.

The exceptions do not controvert the piinciples or the statement of the commissioner’s report, but in these particulars : first, — That no commissions or crc-. dits have been allowed for labor and services, in the. resales of the property of Jno. Rolzendorf. Next, — .Thai interest has been allowed to the complainants upon the balance of monies received by Hubbard ¿lees. These, exceptions thecommissionrr o-ver-ruled.

Before the counsel for the defendant argued these exceptions, he made a question which I am bound to notice. That is, whether the agreement between Mr. I lees and Mr. Harrison and 1‘eav, was so regularly proved *v.h*to enable the court to ¡nace any decree on that foaudalion ? Upon ibis question I have no doubt, ft v/iis admitted that, ike dwelling Loupes of Mr. Harrison and Mr. Be ay have been burnt. The presumption ol" ¿he loss of papers arising from that misfortune, lets in ‘.he complainants to parol evidence, of the existence and ¿enns of the agreement $ and Gen. Canty’s recoiled ion, has enabled him to state with great exactness, the execution and the terms of the agreement.

1 proceed now to the censi deration of the exceptions. It docs not appear that the agreement contained any provision respecting the allowance of a commission to Mr. flees for labor and service, in the resale of the property of Hoizcndorij and it is contended by the com ] ¡piainant’s counsel, that the absence of an express stipulation for commissions, negatives the claim on general *principles;*but I am not of this opinion. It might b«-■1 mere omission 5 and at any redo, the agreement contain!! nothing which forbids the claim. The question then is, whether the claim for commissions in a reason-bio and equitable one on general principles ? and I can have no doubt that It in, as far as the labor and services ar«1n operate beneficially for rompía inanís, Sir. Ucee *113must have bail much trouble and difficulty in the resale of the lands, and deserves a commission therefor ; especially from the complainants, who woidd otherwise have been sufferers to a much greater extent than they have been. The first exception of defendant is therefore supported; and it must be referred back to the commissioner to make a statement, .wherein he shall allow to the defendant the usual commission in such transactions, on so much of the sales of the lands, as after paying off the judgments and reimbursing Mr. Bees, shall be applicable to the reimbursement of the complainants.

We come now to the next exception : I am of opinion the commissioner did right in allowing interest on the balance of money received by Mr. Rees. Mi*. Bees was bound to apply the proceeds of the sales of the lauds and ■other monies of Holzcndorf’s which came to his hands, to the different objects stated in the agreement, as fast as lie received the lhoney; if lie did not, he had the use and benefit of it, and according to the plainest principles of equity, is bound to pay interest thereon; — I concur, therefore, with the commissioner in over-ruling this exception. The balance, therefore, in the hands of Mr. Long, the executor of Hubbard Bees, is directed to be paid with interest, on or before the first January 18115 Use interest to be continued till paid.

As to the costs, Í think that as the necessity of coming into this court arose, from the neglect of Mr Rees, in not keeping and rendering exact accounts of his transactions under the agreement, his estate ought to be made liable for them. Let the costs, therefore, be paid by the executor out of Mr. Bees5 estate.

Henry Wm. Besaussure.

Mr. Ellison, Mr. Deas and Mr. Blanding for conj¿ plalnants. Mr. Richardson for Defendant.

There was no appeal from this decree.