#### Sellers *v.*VanUxem, Pierce & Co.

In an action of assumpsit on a promissory note, for $427.53, by VanUxem, Pierce & Co., payees, the defendant, the maker, asserted, in an affidavit of defence, a counter-claim, as follows : The plaintiffs, insurance agents, placed a policy upon the life of one Hammond, receiving a premium thereon of $2,260; there is due the defendant, as an insurance solicitor, commissions upon said amount of either 40 per cent., if the policy was a “whole life policy, paid by more than 20 annual premiums ” or 30 per cent, if “ a whole life policy paid by 10 annual premiums ; ” that he is entitled thereto in that Hammond was discovered by him, interviews were had with him, statement furnished him, information covering the proposed insurance was made to Moore & VanUxem, general agents of the insurance company, of which Harold Pierce, one of the plaintiffs, was the manager; the said Harold Pierce becoming familiar, through the defendant, with the particulars of Hammond’s case, so under charge of the defendant, and the present plaintiff firm through him ; and so knowing the fact that the defendant was entitled to receive the commissions so established, the plaintiff firm received the said sum ; the commissions belong to defendant under an established custom, among men in the same line of business as the parties to this action, fixing the payment of the commission to the agent acting as did the defendant. The court made absolute a rule for judgment for want of a sufficient affidavit of defence. *Held,*not to be error.

Oct. 29, 1889.

Error, No. 172, Oct. T. 1888, to C. P. No. 2, Allegheny Co., to review a judgment for want of a sufficient affidavit of defence in an action of assumpsit, by L. C. VanUxem, Harold Pierce, William L. Moore and Jos. S. Neff, partners, trading as VanUxem, Pierce & Co., payees, on a promissory note for $427.53, against H. D. Sellers, the maker, at April T. 1888, No. 160.

The defendant filed an affidavit of defence, averring as follows

“ *On*July 22, 1887, as this deponent is informed, believes and expects to be able to prove on the trial of this action, VanUxem, Pierce & Co., the plaintiffs in this case, placed a policy of insurance, the form of which deponent expects to prove on said trial, upon the life of one W. J. Hammond, Jr., of Pittsburgh, Pa., in the New York Life Insurance -Co. of New York, receiving thereupon the *sum of $2,260,*the first year’s premium thereon, upon which said sum this deponent avers that he is entitled to a commission, dependent upon the character of said policy, viz: If the same were written and placed as “ a whole life policy paid by more than twenty annual premiums,” then forty per centum thereof, or $904; if “ a whole life policy paid by ten annual premiums,” then thirty per centum thereof, or $678.

“ This affiant avers that he is entitled to the commission, dependant as aforesaid, in that the subject for insurance was discovered by him; interviews had, from time to time, with the proposed assured, statements furnished him, information covering said proposed insurance reported to the house of Moore & VanUxem, general agents of the New York Life Insurance Co. of New York, of Pennsylvania, then having a branch office in Pittsburgh, of which Harold Pierce, one of the present plaintiffs, was the manager; the said Harold Pierce becoming familiar, through the defendant, with the particular case of said Hammond, so under charge of this de*64ponent, before said policy was placed, and the present plaintiff firm through him.

“ So knowing the fact that this affiant was entitled to receive the commissions so established as aforesaid, the plaintiff firm received the said sum and have wholly neglected and refused to account for the same or any part thereof.

“ Said risk, and the commissions allowable thereunder, belong to said affiant, under the custom established in such cases, by insurance agents and agencies in this and other communities, as this deponent is informed, believes and expects to be able to prove on the trial of this case.

“ Affiant further avers that, during the entire time covered by said transactions, he was legally authorized to write and place policies of insurance, being a licensed insurance agent.

“ Deponent therefore asks that a certificate be had in his favor, subject to the character of said policy issued to said Hammond as aforesaid, he, the affiant, not being at present fully informed as to the form thereof.”

The court made absolute a rule for judgment for want of a sufficient affidavit of defence.

*The assignment of error*specified this action of the court, quoting the decree.

*E. A. Montooth,*of *Montooth Bros.,*for plaintiff in error. —

The 'custom averred by the plaintiff in error is legally stated.

To be binding on persons engaged in a particular business, a custom should be reasonable, continued and acquiesced in by all acting within the sphere of its operation. McMasters *v.*Penna. R. R. Co., 69 Pa. 374.

That asserted here to exist is not unreasonable and the averment that it is established involves the idea of continuance and acquiescence.

“ Custom is usage so long established, and so well known as to have acquired the force of law.” Adams *v.*Pittsburgh Ins. Co., 76 Pa. 411.

The set-off is stated as clearly as the defendant could make it, under the circumstances of the case. He does not know the character of the policy, but that could be shown at the trial by a rule taken for its production.

*W. B. Rodgers,*for defendant in error.

Defendant alleges no transactions or dealings whatever with VanUxem, Pierce & Co., having acted throughout with Moore & VanUxem, against whom alone he could have any claim, and that is a matter entirely between themselves.

This alleged custom is unreasonable. The effect of such a custom would be that every commission earned in placing insurance would be liable to be claimed by any insurance agent who was *65fortunate enough to discover a subject, and it is well known that subjects are often approached by several agents before an insurance is effected, and the result would be that an end would be put to all competition and enterprise in that business, by rendering the compensation precarious and uncertain, and it would be a prolific source of unfounded and harrassing claims. Such a custom is evidently absurd, and, applied to any business, would be ruinous.

Jan. 7, 1889.

And, further, for aught that appears in defendant’s affidavit, Seller’s efforts were entirely unavailing. Even if he had not failed, he might not have been able to obtain so large a policy.

Per Curiam,

Judgment affirmed.