Page:Federal Reporter, 1st Series, Volume 5.djvu/499

 MARYE V. STROUSB. ���487 ���business. The plaintiffs defend these chatges on the ground that they are in aceordance with an established custom of mining stock brokers. The testimony faiis to bring knowU edge of this Custom, if any, home to Strouse. He never agreed to the charges, nor did Frankel & Block ever inform him of their character. He himself denies any knowledge of the custom, if it be a custom. �I think, also, tha,t the testimony fails to show that the alleged custom had existed so long, and was so generally known, that the defendant ought to be presumed to have had knowledge of it, and to have contracted with reference to it. The only evidence on this point is that of Mr. Frankel. �In answer to the question whether this mode of cha.rging "was a custom among the brokers, and ivas well known," bis answer is, "I tell everybody; make no bones about it." Again he answers: "It (the mode of charging) is well known; we don't make any bones about it — tell everybody." This shows that there was nothing clandestine about the charges, but does not show a certain and uniform custom among bro- kers which was known to both parties. �A custom or usage like this, of charging customers, in addition to commissions, not merely the actual cost of tele- grams, but an arbitrary sum, ordinarily much more than the actual cost, if it can be considered reasonable, ought to be established by very satisfactory proof, and it should also appear that both parties had knowledge of it, �Strouse says he expected to pay the actual cost of the tel- egrams about bis business, but nothing more. There is, how- ever, no proof showing what the real cost was. It being con- ceded that the charge is excessive, unless supported by custom, the burden of showing what the real cost of telegrams was is on the plaintiffs. But this bas not bçen done, and the charge must stand or fall as a whole. I do not thihk it can be sus- tained on the ground of custom. Nor do I think that in ref- erence to these charges the defendant has lost bis right to object to them becanse he may bave stated an aceount in- cluding them, or because payments made by him may bave been appropriated by Frankel & Block to their payment. ����