20 F. Cas. 146 | S.D.N.Y. | 1849
There is no ground to exclude the evidence of the broilers. The commissions they were to receive were not dependent upon the performance ■of the contract. They were earned, it is true, so soon as the bargain was made, and ■only upon the fact that the bargain had been made, but the result of this action in no way •determines their right to commissions, or supplies evidence upon which they can en-foi'ce a recovery of them. If both broker’s fire to be regarded as acting for the libellant, the customary commissions would be divided between them; but they would not be a •charge on the respondent, and he is directly liable to Brookman only on the supposition that the latter acted in his behalf as his broker. In neither case, however, does his liability arise out of or stand affected by the event of this suit. If a commission is claimed of him by Brookman because a freight was obtained for his vessel, the demand ■cannot be maintained upon Brookman’s testimony, nor its recovery be any way aided by the decree rendei’ed in this case should it be in favor of the libellant. So, also, Mr. Smith must look solely to the libellant for his compensation, and his demand must be supported by other evidence than his own testimony or the decree in this cause.
The objections to the support of the action most relied upon on the argument were that the arrangement made by the brokers and respondent was not a hiring of the vessel, "but only an agreement leading to a charter party, and could not as such be enforced in this court, or that, if a charter party, it was a verbal one, not obligatory on the respondent, and, moreover, not so on the libel-lant, because the authority given by him to Smith, his broker, was to enter into a written charter party, and he could bind his principal by no other form of engagement. The letter of the libellant- directing Smith to ■procure a vessel is not to be understood as prescribing the method of doing the business, but would authorize his aeting for the libellant either through a written or verbal contract. It conferred upon him an agency in this particular which might be exercised in any way appropriate to carrying the authority into effect. Story, Ag. § 60. The power need no more be exercised by specialty than be conferred by it. Id. §§ 44, 47. And especially in commercial transactions an express authority given by informal instruments, such as letters of advice or instruction, is construed with liberality. Id. § 82. I have no doubt the broker was acting with the fair authorization of the letter of instructions given by the libellant in entering into a verbal contract of affreightment with the respondent. When a vessel is let to freight by an instrument in writing, the contract is called a “charter party.” Spring v. Gray, 6 Pet. [31 U. S.] 164. But it. is not necessary under the law merchant to have a specific engagement in writing to constitute a legal letting of a ship; a hiring without writing is valid. 3 Kent, Comm. 204; 1 Valin, 618; Muggridge v. Eveleth, 9 Metc. [Mass.] 233. The only difficulty is as to the sufficiency and certainty of the proof when the agreement is by parol. In the present case the evidence is clear and uncontradicted, and shows the agreement as deliberately entered into by the respondent, and was confided in by the libellant’s agent. Theie was perfect mutuality in it. If the libellant had neglected or refused to supply the freight stipulated, the respondent, by holding his vessel ready to perform on his part and tendering a performance, could have enforced a full recompense for his loss of time and profits. Story, Cont. §§ 127-129; Abbott (by Perkins) 257.
The jurisdiction of the court over contracts of affreightment, whether evidenced by chaxter parties, bills of lading, or a penal hiring of a vessel, or agreement to transport cai’go, has been so often considered by this court, and decided in favor of supporting it, that I do not consider it • now an open question here or in the circuit coxxrt of this district. I consider the doctrine in effect established by the supreme court. [New Jersey Steam Nav. Co. v. Merchants’ Bank] 6 How. [47 U. S.] 392; [Commercial Bank of Cincinnati v. Buckingham] 5 How. [46 U. S.] 341. This court will continue to take cognizance of cases of that class until the supreme court shall expressly lay down a different rule of decision.
Decree for libellant, and reference to com-missionex'.
