Ferris v. Haynes

The order denying the motion for a discovery of books and papers was right. The general term of the court of common pleas expressly held that the plaintiff could not recover a percentage as brokerage on any fixed sum for the reason that no fixed sum was mentioned in the lease as rental.' Whether that decision was correct or not is not the question, and it cannot be reviewed on an appeal from this order. It is the law of the case as laid down by the general term of the court in which the action was brought. Under the decision as made by the general term it would be useless to undertake to give evidence of net profits payable as rent, because the court held that there was nothing payable as rent, and that the principle controlling the case was such that no recovery could be based upon a specific sum, no matter how that specific sum might be ascertained, it not being mentioned in the lease; or, in other words, there was nothing payable as rent from the lessee to the lessor until at the end of the accounting, and that, therefore, the plaintiff had mistaken his remedy, and should have sued on a quantum meruit. The court below was right, therefore, in holding that the motion must be denied upon the opinion of the general term of the court of common pleas. Order affirmed, with $10 costs and disbursements.