Taylob, J.
It is insisted by the appellant that there was no evidence in the casé which would authorize a verdict for anything more than nominal damages, and that the court erred in submitting the question as to the amount of damages to the jury; that the court should have directed the jury to return a verdict for nominal damages only; that the court erred in submitting the question to the jury, whether a custom to pay a fixed compensation for services such as were proved to have been rendered by the plaintiff, had been established by the proofs, and in that part of the charge which directed the jury to consider the question of the presentation of the account, in arriving at the amount of their verdict.
We are of the opinion that there was not sufficient evidence ’in this case to establish the fact that there was a custom in the city of Milwaukee, as charged in the complaint and as attempted to be proved by the plaintiff, viz.: “ that, in the absence of an express agreement as to the rate of compensation to be paid to a real-estate agent or broker for his services in purchasing or selling real estate in the city of Milwaukee, there was a uniform, customary rate of compensation, which was three per cent, of the price paid.”
The only witness who testified to the existence of such a [169] customary rate of compensatioD, was the plaintiff bimself. On tbe other .hand there were three other witnesses, apparently equally competent and having equal opportunities for knowing of the existence of such customary rate, if it existed, who say there was no such custom. It is clear that such evidence did not establish the existence of the custom claimed, and the judge should have so charged the jury. Upon this point we simply cite the cases in this court which sustain our position, as the counsel for the respondent, in arguing the case here, freely admitted that the evidence was insufficient to establish such custom. Power v. Kane, 5 Wis., 265; Hall v. Storrs, 7 id., 253; Lee v. Merrick, 8 id., 229; Keogh v. Daniell, 12 id., 163.
The first case above cited involved the question as to the same custom set up in the case at bar. Justice Smith, wTho delivered the opinion, says: “ It is not denied that usage may enter into and become a part of the law of trade, or that the law is to be applied to the transactions of parties contracting and doing business in view of and in reference to such usage. But it is not readily adopted by eourts, and the proof of such usage must Toe clear and explicit, and the usage so well established, u/niform, and so notorious that the parties must be presumed to hnow it and to have contracted in reference to it.” The rule as to the nature aud quantum of evidence necessary to establish a custom is well stated in the language of the court above quoted, and we are not disposed to change it.
But the respondent’s counsel insist that, in the absence of any sufficient evidence to establish the fact that there was a customary rate of compensation for the services performed by the plaintiff for the defendant, the judgment ought not to be reversed, because there was evidence to go to the jury upon the question of the value of the plaintiff’s services, irrespective of any customary rate of compensation, and that the plaintiff is entitled to a verdict upon a quantum meruit.
The complaint is no doubt broad enough to admit of evidence of the value of the services rendered, without proof of [170] the customary value; but we are unable to find any evidence tending to show the actual value of such services.
The plaintiff, who was the only witness upon this question in his own behalf, does not swear that his services were worth anything. His statement is, that there was a custom in the city of Milwaukee to charge three per cent, on the purchase price when there was no special agreement. This evidence was only pertinent to prove a customary price, or rather a price fixed by custom, and not to prove the value of the particular service performed in the purchase of the property in question. Had the plaintiff succeeded in proving the custom as to compensation, it would have been entirely immaterial what the real service performed was, or what w'as the actual value of such service. As was said by Justice Smith in the case of Power v. Kane, supra, speaking of the custom that the price wras a percentage of the purchase money, “ the amount of compensation is not at all to be regulated by the amount of labor, time and skill employed, but w'holly upon the amount of the purchase money, no matter at how much or little cost of the former the purchase might be effected.”
It is now urged that the answer of the plaintiff, that the customary price, or price by custom, was three per cent, of the purchase money, is evidence of the value of the services rendered, to sustain the recovery upon a quantum meruit. It is clear that the case did not proceed upon that theory on the trial in the court below, and that it is taken for the first time in this court. The learned circuit judge before whom the ease was tried, did not so understand it. He treated the evidence of the plaintiff on this point as tending only to prove a fixed price by custom, and so charged the jury. We think he was right in thus viewing this evidence. This evidence only tended to prove a value for the services rendered, which had been fixed by a known and uniform custom in the city of Milwaukee, and did not prove or tend to prove the actual value of the services rendered in the case independent of such custom.
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Taylob, J.
It is insisted by the appellant that there was no evidence in the casé which would authorize a verdict for anything more than nominal damages, and that the court erred in submitting the question as to the amount of damages to the jury; that the court should have directed the jury to return a verdict for nominal damages only; that the court erred in submitting the question to the jury, whether a custom to pay a fixed compensation for services such as were proved to have been rendered by the plaintiff, had been established by the proofs, and in that part of the charge which directed the jury to consider the question of the presentation of the account, in arriving at the amount of their verdict.
We are of the opinion that there was not sufficient evidence ’in this case to establish the fact that there was a custom in the city of Milwaukee, as charged in the complaint and as attempted to be proved by the plaintiff, viz.: “ that, in the absence of an express agreement as to the rate of compensation to be paid to a real-estate agent or broker for his services in purchasing or selling real estate in the city of Milwaukee, there was a uniform, customary rate of compensation, which was three per cent, of the price paid.”
The only witness who testified to the existence of such a [169] customary rate of compensatioD, was the plaintiff bimself. On tbe other .hand there were three other witnesses, apparently equally competent and having equal opportunities for knowing of the existence of such customary rate, if it existed, who say there was no such custom. It is clear that such evidence did not establish the existence of the custom claimed, and the judge should have so charged the jury. Upon this point we simply cite the cases in this court which sustain our position, as the counsel for the respondent, in arguing the case here, freely admitted that the evidence was insufficient to establish such custom. Power v. Kane, 5 Wis., 265; Hall v. Storrs, 7 id., 253; Lee v. Merrick, 8 id., 229; Keogh v. Daniell, 12 id., 163.
The first case above cited involved the question as to the same custom set up in the case at bar. Justice Smith, wTho delivered the opinion, says: “ It is not denied that usage may enter into and become a part of the law of trade, or that the law is to be applied to the transactions of parties contracting and doing business in view of and in reference to such usage. But it is not readily adopted by eourts, and the proof of such usage must Toe clear and explicit, and the usage so well established, u/niform, and so notorious that the parties must be presumed to hnow it and to have contracted in reference to it.” The rule as to the nature aud quantum of evidence necessary to establish a custom is well stated in the language of the court above quoted, and we are not disposed to change it.
But the respondent’s counsel insist that, in the absence of any sufficient evidence to establish the fact that there was a customary rate of compensation for the services performed by the plaintiff for the defendant, the judgment ought not to be reversed, because there was evidence to go to the jury upon the question of the value of the plaintiff’s services, irrespective of any customary rate of compensation, and that the plaintiff is entitled to a verdict upon a quantum meruit.
The complaint is no doubt broad enough to admit of evidence of the value of the services rendered, without proof of [170] the customary value; but we are unable to find any evidence tending to show the actual value of such services.
The plaintiff, who was the only witness upon this question in his own behalf, does not swear that his services were worth anything. His statement is, that there was a custom in the city of Milwaukee to charge three per cent, on the purchase price when there was no special agreement. This evidence was only pertinent to prove a customary price, or rather a price fixed by custom, and not to prove the value of the particular service performed in the purchase of the property in question. Had the plaintiff succeeded in proving the custom as to compensation, it would have been entirely immaterial what the real service performed was, or what w'as the actual value of such service. As was said by Justice Smith in the case of Power v. Kane, supra, speaking of the custom that the price wras a percentage of the purchase money, “ the amount of compensation is not at all to be regulated by the amount of labor, time and skill employed, but w'holly upon the amount of the purchase money, no matter at how much or little cost of the former the purchase might be effected.”
It is now urged that the answer of the plaintiff, that the customary price, or price by custom, was three per cent, of the purchase money, is evidence of the value of the services rendered, to sustain the recovery upon a quantum meruit. It is clear that the case did not proceed upon that theory on the trial in the court below, and that it is taken for the first time in this court. The learned circuit judge before whom the ease was tried, did not so understand it. He treated the evidence of the plaintiff on this point as tending only to prove a fixed price by custom, and so charged the jury. We think he was right in thus viewing this evidence. This evidence only tended to prove a value for the services rendered, which had been fixed by a known and uniform custom in the city of Milwaukee, and did not prove or tend to prove the actual value of the services rendered in the case independent of such custom.
We think the learned judge erred in holding that the evi-[171] deuce given in tbis case as to the presentation of the bill for services tended to establish the value of such services. The evidence simply shows that a written bill was shown to the defendant, not delivered to him, and that, at the time the same was so exhibited, he refused to pay, and told the plaintiff he ought to get his pay of the other party. . Most certainly that evidence did not tend to prove the value of the services rendered. It was simply a declaration on the part of the plaintiff, not under oath, that he claimed that his services were worth a certain sum. The defendant, having declared that he was not under any legal obligation to pay any part of the bill, and having refused to pay it, was not called upon to dispute its amount; and his silence upon that subject should not be construed into an admission on his part that the amount stated in the bill was the proper charge for the service performed. ¥e think the case of Cobb v. Arundell, 26 Wis., 553, is conclusive upon this point. Justice PaiNe, who delivered the opinion in that case, says: “Upon this evidence, Davy must be held to have been the agent of the plaintiffs for the purpose of tendering the articles to the defendant; and when, upon such tender, the alleged purchaser refuses to receive the property, and informs the agent that he never bought it, that is information to the principal. And if, after such a transaction, the principal sends bills to the alleged purchaser, including this property, the latter cannot be bound to constantly repeat his refusal and protest against such bills, under peril of being held to have admitted their correctness. "When he has once informed the very agent sent with the property that he never ordered it, and refuses to receive it, he may rest upon that as a sufficient dissent.” So in this case, the defendant having denied all liability for the plaintiff’s claim and refused to pay any part of it, he was not called upon to dispute the correctness of the bill presented, as to the amount of the claim. We think there was no evidence in the case which justified the judge in submitting to the jury the question as to the customary rate of compensation which the plaintiff claimed, and that he also erred in [172] that part of bis charge relating to the bill or account presented by the plaintiff, and which is above quoted.
By the Oow't. — The judgment of the county court is reversed, and the cause is remanded for a new trial.
Ryan, O. J., took no part.