#### Henry H. Leeds *et al.*plaintiffs and respondents, *vs.*Sidney W. Bowen, defendant and appellant.

1. Under the statute “ of sales by auctioneers,” (1 *H. 8.*528,) an auctioneer is entitled to no further compensation for his services respecting a sale, which he is employed to make, beyond two and one half per cent on the amount of the proceeds of the sale made by him,- unless a -written agreement for additional compensation be previously made.

2. The services mentioned in the statute, for which two and ond half per cent is intended to be a compensation, are not merely the actual offering the goods for saje and striking them off, but include also all duties incidental thereto, which are customary and necessary to .procure a successful sale.

8. An auctioneer who is employed to sell a stock of goods upon an oral agreement for a compensation greater than two and one half per cent, and prevented, after selling a part, by the employer countermanding the sale, is not entitled to recover commissions on the value-of the whole stock of goods, at the rate so agreed upon.

(Before Babbour and Monell, JJ.)

Heard April 10,1863;

decided May 9, 1863.

*11The action was brought by Henry H. Leeds and Allen B. Miner on a contract by which the defendant (Sidney W. Bowen) had employed them, as auctioneers, to sell a stock of goods.

The cause was tried on the 7th day of March, 1862, before Mr. Justice White, and a jury. The main facts are stated in the opinion of the court. It may be added that one of the plaintiffs (Miner) being examined on his own behalf, testified as follows : “About the first of November, Mr. Bowen called .upon us and engaged us to make a sale of his property. * * * He wished us to take charge of the sale, and do every thing in our power tó make it a successful sale, stating that he would advertise it specially himself, and would either have his catalogue printed, or that it was in process of printing. He wished us to perform all the necessary duties with that exception, and asked me what we would do it for the lowest, and I told him we would provide the proper clerks, distribute his catalogues, and take all the necessary and incidental action to make it a successful sale, for five per cent, if that should be the amount of the sale.” Another witness testified that the plaintiff told the defendant, Sidney W. Bowen, that if the sale amounted to $10,000, he would distribute the catalogues he intended to have made out for paper and paper hangings, and would put in his general advertisement, and furnish the clerks, and perform all the duties of the sale for five per cent.

Thé testimony on the part of the defendant did not conflict with this, except to deny "any agreement "to have either the whole stock or any particular amount sold.

The counsel for the defendant requested the judge to charge the jury that unless there was an agreement in writing made between the parties, the plaintiffs were not entitled to recover "a greater amount than two and a half per cent upon the amount of the sales actually made by them. The judge refused so to charge; to which refusal the counsel for the defendant excepted.

The judge charged the jury that an agreement in writing was not necessary for such a service as the plaintiffs undertook to perform for the defendant. They might make the* agree*12ment verbally. When the service, as proved to be here, was more than the services which the statute contemplated, an agreement made verbally was binding upon the parties; he therefore directed the jury to render a verdict for the plaintiffs for $500; to which charge the counsel for the defendant excepted. •

The jury found a verdict accordingly, and the judge ordered that the exceptions taken on the trial be heard in the first instance at the general term.

*G.*Tillotson, for the defendant, appellant,

cited *Laws of*1817, *p.*326, *ch.*275; *1 R. S. 3d ed.*648, §§ 27, 28.

*E. D.*Mills, for the plaintiffs, respondents.

The statute (2 *R. S. 5th*ed. 463, § 36,) has no application to this case. (1.) This action is not brought to recover *commissions*on *sales,*but for damages arising from a breach of contract. (2.) The statute is intended to apply to sales actually made. The construction claimed by the defendant might be the true one, if the action had been brought to recover more than two and one half per cent, on sales actually made. ■ The utmost that could be claimed would be, that the plaintiff should be limited in his recovery to two and one half per cent on $10,000. (3.) The construction given to the statute, on the trial, was the right one.

The statute, in limiting the compensation to two and one half per cent on the amount of sales, has reference to the simple duty or act of crying off the goods. Any other service or means by which a sale is made more successful, are the proper subject of a contract for greater compensation. Such was the agreement in this case.

By the Court, Barbour, J.

By the pleadings and evidence in this case it appears that the defendant employed the plaintiffs, who were auctioneers in the city of Hew York, to sell his stock of paper hangings at auction, upon a representation that such stock was inventoried at some $18,000 or *13$20,000, and would sell at auction for $10,000, for which, the plaintiffs were, by the agreement, which was .entirely oral and not in writing, to receive five per cent upon the sales, for their compensation; that the'auction sale contemplated by the agreement was actually commenced, and, after about ninety dollars worth of goods were sold, such sale was stopped by the defendant, for the alleged reason that he had disposed of the remainder of his stock at private sale. The court held that the plaintiffs were entitled to recover five per cent upon the whole $10,000, and dirgcted a verdict accordingly; to which the defendant excepted.

The 36th section of the statute “ of sales by auctioneers,” (2 *R. S. 5th ed.*463,) declares that *“no*auctioneer shall demand or receive a higher compensation for his services than a commission of two and a half per cent on the amount of any sales, public or private, made by him, unless by virtue of a previous agreement in writing between him and the owner or consignee;” and the 37th section imposes a penalty of $250 for a violation of the provisions of section 36.

The services mentioned in the act are not, merely, the offering of the goods for sale, and striking them off. Indeed, the auctioneer need not sell at auction at all, but may dispose of them at private sale. (§ 36.) In addition to selling the goods, it is also, under the statute, the duty of the auctioneer, as such, to advertise the proposed sale in a newspaper ; (§ 34;) and, in case the purchase, money shall not be paid immediately, he must enter the sale, with all necessary details, in a book to be kept by him for that purpose; (§ 39;) and he is also required to have a show or auction house for his business. (§ 30.)

But, aside from the statute, an auctioneer, like any factor, is .bound by his undertaking to sell goods to take all such proper and incidental steps to insure a successful sale as are customary and necessary. If in performing those incidental duties, any expenses are incurred, such expenses will be properly chargeable against the owner; but the auctioneer is entitled to no compensation *for his services*in the matter of the sale or *14its incidents, except the two and a half per cent fixed by the statute, unless a written agreement for more shall, previously, have been made. Any agreement providing for a commission exceeding two and a half per cent, unless the same shall be in writing, whether under pretense of covering moneys expended by the auctioneer, or his services, is therefore either an evasion of, or contrary to, the statute, and is void. ,

In this case, the action is brought upon the agreement to sell the merchandise at auction, and nothing else. It is not pretended in the complaint that any services were to be or were performed for the defendant by the plaintiffs, beyond selling a portion of the goods; nor does the evidence show that any other services were rendered.

For these reasons, I-think the direction of the justice was erroneous; and that the verdict should be set aside, and a new trial granted, with costs.