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    Charles F. Weber, Plaintiff and Respondent, v. Daniel C. Kingsland et al., Defendants and Appellants.
    1. In a charter party of an American vessel, made in London, and executed only on the part of the owners and the charterer of the vessel, the following stipulations were inserted. “In consideration of this charter, a commission of five per cent on the gross amount of freight is now due by the owners (ship lost or not lost) to Gr. & Co.,’’ [who were the brokers who effected the charter] * * * * “for which the owners hereby give them a lien on the freight, and with them the original charter party is to be deposited. Likewise in consideration of this charter, the owners agree with Gr. & Co., that the vessel upon her return to Europe, is to be consigned to, and reported inwards at the Custom House by them or by their agents, at the out-ports or on the continent.” In an action to recover compensation or damages upon the owners’ neglect to make such consignment;

      Held, 1st. That the charter party was not to be regarded as embodying the whole agreement between the owners and the brokers, or even as presumptively defining all the duties which the brokers should perform, or all the compensation which they should receive.
    2d. The omission to insert in such stipulations any thing respecting the broker’s compensation for the consignment on the return voyage, is at the most, only some evidence to be commented upon and submitted to the Jury, that the owners were not to pay them any additional sum besides the commissions mentioned; and it does not preclude proof either of the actual agreement, or that a right to earn further commissions was, by the usage and course of trade, an incident to the consignment which was agreed to be made to them.
    3d. Proof, that on several other occasions the defendants had paid the plaintiff similar commissions to those they now claimed, is admissible, as being some evidence either that the defendants knew and assented to plaintiff’s custom to make -such charge, or knew that the charges were in conformity to the usage of trade.
    áth. Evidence that these brokers did more than half the business done in London with American ships, is incompetent to show a usage to pay such commissions. The custom of a particular house is not competent as proof of general usage.
    5th. A letter written by one of the defendants to another, nearly two years before the charter in controversy was made, and containing some statement as to what is the usual commission in such cases, was held irrelevant, except that part of it which related to the usage as to commissions; but the admission of the whole letter was held not ground for disturbing the verdict.
    6th. It is objectionable- to allow witnesses to state that if the vessel had been consigned as agreed, the brokers would have been entitled to commissions on a certain sum, it being the main question in the cause whether they would have been so entitled.
    7th. It is not error to refuse to instruct the Jury that they would not have had a right to collect the whole of the inward freight, or that the charterers would have had a right to collect the balance after the unpaid charter money had been collected without paying commissions to the brokers, or that the recovery must be limited to the commissions on the amount of the charter money unpaid on the return of the ship.
    8th. The testimony of the owners’ agent that the brokers.had endeavored, after they had secured a charter at the sum he asked, to induce him while ignorant that they had done so, to consent to a lower sum, is competent as part of the res gestae.

    9th. But this evidence having been excluded, the testimony of the charterers that they were not willing to take the charter at the sum asked by the owners’ agent, unless the brokers would guarantee them against loss, ia inadmissible.
    10th. It appearing that on the return of the ship there was £6,500 unpaid charter money, and that the inward freight, was £9,600; held further, that it was erroneous to charge the Jury that 11 if they should find that the five per cent commission is compensation for collecting the amount of the unpaid charter money,” (i. e., the £6,500,) “ and that for all collections over and above what would be sufficient to pay the unpaid charter money,” (i. e., for collecting the £3,100,) full commissions of two and one-half per cent are chargeable, then, in consequence of the breach by the defendants of the contract to consign, the plaintiffs have lost the opportunity of earning commissions for the collection of the freight of the return cargo, and are entitled to recover what they might have so earned.” The Jury might properly have been instructed that ‘‘the plaintiffs have lost the opportunity of earning commissions for the collection of the freight of the return cargo, and are entitled to recover what they might have so earned so far as it was not covered by the five per cent.”
    11th. But though the instruction given was inconsistent in itself, yet the Jury might have been misled by it; and a verdict for a sum nearly corresponding with two and one-half per cent on the whole inward freight should be set aside.
    2. A motion to dismiss the complaint at the trial should be denied where the plaintiff, by distinctly proving the contract and breach, has shown himself entitled to nominal damages at least.
    3. It is not competent to ask a witness what he supposed, at the time, was the effect of a transaction, or to ask what impression was produced upon Ms mind by what passed. The inquiry should be, what was said or done.
    4. It seems, that the objection that a question, put on an examination de bene esse, was a leading question, cannot be raised at the trial, for it is in the discretion of the Judge taking such examination, to permit a leading question when necessary.
    5. A deposition, taken on commission issued at the instance of one party, may be read in evidence by the other party at the trial, although the former- refuses to read it.
    6. It is proper to refuse a request to charge that the plaintiffs are not entitled to recover damages, on a ground on which they have not claimed to recover damages.
    7. An exception to incompetent evidence cannot be disregarded on the ground . that it must have been harmless, except in very clear cases.
    8. In an action brought by one of two parties upon a cause of action which accrued to the firm and had been released by the copartner to the plaintiff, a question put to a witness:—what was said by the plaintiff about commencing suit in New York rather than in London ? — was excluded by the Court

      Held, that if the word plaintiff was intended to refer to the copartner who had released, and who had been examined as a witness, the question was not competent except for the purpose of contradicting him or affecting his credibility. But if it was intended to refer to the actual plaintiff, the testimony was in its nature competent, and its relevancy could not be determined on the face of the question.
    (Before Bosworth, Ch. J., and Hoffman and Woodruff, J. J.)
    Heard, April 11th;
    decided, June 29th, 1861.
    Appeal from a judgment entered on a verdict for the plaintiff, and also from an order denying the defendants’ motion for a new trial.
    The action was brought by Charles F. Weber against Daniel 0. Kingsland, Ambrose C. Kingsland, Cornelius K. Sutton, James C-. Gregory, Charles H. Salter, Daniel McIntyre, Peter McMartin, John B. James and Luke Harmony.
    The defendants were owners of the American ship Typhoon, and Graseman & Co., ship-brokers, of London, effected a charter for her to Burchard & Barclay, merchants, of London,, for a voyage from London to Calcutta and back to London, for the gross sum of £12,000 charter money for the round voyage. The plaintiff and Graseman composed the firm of Graseman & Co.
    The defendants agreed with Graseman & Co., in consideration of their effecting the charter, to pay them a commission of five per cent on the gross amount of freight named in the charter party, and further, upon the same consideration, that the ship, on her return to Europe, should be “ consigned to and reported inwards at the Custom House by them.” The defendants paid the five per cent commission upon the effecting of the charter, but on the return of the ship to London they refused to consig’n the ship to Gras email & Co., and took her management into their own hands. The action was brought for the breach of the agreement to consign.
    The cause was tried before Mr. Justice Slossoít and a Jury, in April, 1859.
    The contents of the pleadings, and some other facts, appear in the opinion of the Court.
    A. C. Wilkins,- a clerk of Graseman & Co., examined under a commission issued for the purpose, stated, in answer to an -interrogatory as to why the vessel was not consigned to Graseman & Co., and whether any demand was made that she should be consigned, ***** that a few hours after the arrival of the ship, he saw Samuel Goodhue, her then master, at the counting house of Graseman & Co.; [that the said Samuel Goodhue then told witness that he had received a telegraphic message that nothing was to be done as to reporting the ship, or doing her business, until the arrival of the defendant, Charles H. Salter, from Liverpool; that he requested said Samuel Goodhue to communicate the message to the plaintiff; that he heard the plaintiff inform the said Samuel Good-hue that the firm was quite ready to do the ship’s business, and requested the said Samuel Goodhue to allow the ship to be reported at the Custom House, and leave other matters. to be settled on the arrival of the defendant, Charles H. Salter; that the said Samuel Goodhue said he could not allow the ship to be reported, nor anything to be done respecting her, until the arrival of the defendant, Charles H. Salter.]
    To that part of the foregoing answer which is in brackets, the defendants’ Counsel objected. The Court overruled the objection, and the defendants’ Counsel excepted.
    The Counsel for the plaintiffs put in evidence a letter from Mr. Salter to the defendants, Kingsland & Co., dated November 13, 1852, in which, after advising them that the vessel was then ready to sail, &e., and referring to some unsettled business, he said—“Graseman has full power to act for me and remit the balance, which will be about £150, to Messrs. Grimshaw. We have been offered £310s. per ton, and given to understand that we could get £3 12s. 6d. if signed immediately for a return voyage from Shanghae to London, after going to New York and San Francisco. I have not felt at liberty to take it. Graseman has sent me a signed charter-party. Should you accept it, 2£ per cent is the customary commission on such charters ; instead of 50 tons please insert 3,000 tons demurrage, payable by freighters’ agents in Shanghae or Canton; commissions to be paid when freight is earned. Freight payable in cash on delivery, deducting interest.”
    The Counsel for the defendants objected to the reading any portion of this letter which did not refer to usage. The Court admitted the whole letter; whereupon the counsel for the defendants excepted.
    The defendant, D. A. Kingsland, on his examination testified that Graseman & Co. were the consignees under the two previous charters ; they received 2¿ per cent commissions ; no special instructions were given to Captain Salter; the general instructions were, that he should do with the ship as he would do if she was his own.
    Among the interrogatories administered to Captain Salter, in a commission to take his testimony, was the following : “At the time of negotiating the last charter party, did you suppose that you were incurring an obligation to pay any consignment commission whatever ? ”
    On the trial, this question, and the witness’s answer, were excluded on the objection of the plaintiff’s Counsel.
    In answer to another interrogatory, which called on him to state what, if anything, occurred between him and Graseman & Co., in reference to the terms of the charter party, before the same was made, the witness stated the negotiations between himself and Graseman & Co., hi the course of wMch he said, .that after the latter had obtained a charter party, to be signed by the charterer at £12,000, they kept it in their desk, without informing him of it, and offered him various lower sums, only producing the charter party after he had declined to accept less.
    The plaintiff’s Counsel objected to the reading of this statement, and the Court excluded it, to which the defendants’ Counsel excepted.
    Eobert G. Barclay, one of the charterers, whose deposition was also taken, stated in one of his answers that he did not recollect the sum that he first offered for the vessel, but it was less than £12,000, and he finally agreed to give £12,000; [that he was induced to give more than he at first offered, on account of Graseman & Co. agreeing to guarantee witness’s firm against loss, to the extent of their commission of 5 per cent; and] that without such agreement he would not have paid so much for the vessel.
    The Counsel for the defendants objected to the reading of the statement contained in brackets. The objection was overruled, and the defendants’ Counsel excepted.

      William Fullerton for the defendants, appellants.
    I. The contract having been reduced to writing, no parol evidence, and no evidence of conversations or agreements prior to the signing of the charter party, should have been admitted.
    II. There is no allegation in the complaint, nor was there a pretense on the trial, that any part of the agreement was omitted from the charter party by mistake, fraud •or otherwise, which alone would entitle the plaintiff to :give.the evidence.
    III. The plaintiff having declared upon and proved a •contract to pay 2-J per cent consignment commission, it was error to admit evidence as to the custom of ship-brokers in London to charge such commission.
    The plaintiff did not, by his complaint, seek to recover on the strength of a custom; nor did he ask on the trial to amend his complaint so as to make such evidence admissible.

      The Court should have charged as requested, that inasmuch as the plaintiff claimed to recover upon an express agreement to pay the consignment commission, the Jury should be instructed to disregard the evidence as to custom.
    The Court had already submitted the question, whether there was a contract to pay the 2J per cent consignment commission.
    The Jury were left, therefore, to find for the plaintiff, upon the contract, if they, believed one was made, or upon the strength of custom, if they believed that no agreement had been entered into.
    IV. The belief of the witness Graseman, as to the reason why the ship was not consigned to them, should not have been given as evidence in the cause. It was calculated to prejudice the minds of the Jury.
    V. There was no evidence of usage to charge the commissions claimed in this case at a higher rate than per cent commissions on the inward freight.
    The plaintiff sought to recover 2£ per cent commissions on the gross amount of chartered freight, which included both the outward and inward voyage.
    There was a total failure of proof of a custom to charge the commission on the chartered freight, and the Jury should have been so instructed.
    VI. Even if the plaintiff were entitled to recover, he could recover no more than a commission on the balance due of the chartered money, on the return of the vessel from the voyage, which was £6,500, and the Court erred in refusing so to charge.
    VII. The Court should have instructed the Jury that the plaintiff could not recover, on the ground that they lost a good will, or lost credit in the market, by reason of the consignment not being made to them.
    VIII. It was error to admit evidence of the prior charter-parties effected by Graseman & Co. for the defendants.
    IX. The plaintiff should not have been permitted to give evidence as to the sum upon which Graseman & Co. would have been entitled to charge a consignment commission.
    That was a matter of law, to be determined by the facts proved.

      William M. Evarts, for plaintiff, respondent.
    I. The plaintiff was entitled to prove the contract between the defendants and Graseman & Co., by either written or parol evidence.
    Ho rule of law requires such a contract to be in writing; and the objections to parol evidence can only rest upon the claim that such contract was, and was proved to be in writing.
    The charter party is clearly not a contract between Graseman & Co. and the defendants; and its existence in writing is no bar to the proof of the contract between Graseman & Co. and the defendants.
    The insertion in the charter party of such terms of the latter contract as it behooved the charterers to know and assent to, as a part of their contract, does not limit the freedom of proof open to Graseman & Co., to show their contract.
    II. There was no controversy in regard to the agreement to consign the Typhoon to Graseman & Co. on her return voyage; whether there was an express contract to pay a commission upon such consignment, and if so, at what rate per cent, and upon what sum it was to be computed, were matters disputed upon conflicting testimony. The evidence as to what rights, in respect of commissions, followed from the mere agreement to consign, was competent and legitimate.
    III. The motion for a nonsuit when plaintiff rested, was properly denied.
    There was sufficient evidence in respect to express agreement between the parties, and in respect to implied agreement from general usage, from usage in the special trade, and from previous dealings between these parties, to have not only justified but required a verdict for the plaintiff on his evidence.

      IV. The exceptions arising upon the Judge’s charge, and to his refusal to charge, are not well taken.
   By the Court—Woodruff, J.

The complaint in this action states, as the ground of the defendants’ liability, that on or about the 22d of February, 1854, the defendants employed Graseman & Co. to procure a charter for the ship Typhoon, (of which they were, or claimed to be the owners,) for a voyage from London to some foreign port and back to London, and agreed to pay them a commission of five per cent upon the freight, to be paid by the charterers, and also to consign the vessel to Graseman & Co. on her return to London from the voyage to be performed under the charter party, and that they, Graseman & Co., should be entitled to collect the freight and do all the business of the ship upon such return voyage which it is usual and customary for consignees to do; for which services, as consignees, they should be entitled to charge the defendants, and to have and receive from them, the usual and customary commissions and compensation for such services.

That Graseman & co. procured for them a charter, (Broadwood & Barclay becoming charterers,) whereby the gross freight or charter-money of £12,000 sterling was secured to the defendants, and the ship entered upon and completed the stipulated voyage, and earned the freight named in the charter.

But the defendants did not, upon the return of the ship, consign her to Graseman & Co., or permit them, (although ready and willing, &c.,) to do the business thereof and earn the commissions therefor, but consigned the ship to other persons, who did the business and earned and received a large amount of commissions therefor, which, of right, belonged to Graseman & Co., and the defendants did not pay nor allow Graseman & Oo. any commission or compensation beyond the aforesaid commission of five per cent upon the amount of the said charter.

That, by reason of the non-performance of the said contract by the defendants, Graseman & Co. were deprived of the commissions, gains ánd profits which they could and would have earned as consignees of the said vessel; which commissions, so lost by them as aforesaid, according to the usual and customary rate, were and would have been two and one-half per cent upon the amount of freight, which would have amounted to fourteen hundred and seventy dollars; and the defendants then and there became liable to pay Graseman & Co. that sum.

An assignment to the plaintiff by Graseman of the latter’s interest, is then stated.

The answer first denies all the allegations in the complaint, and then, in effect, denies any agreement, by the defendants, to pay Graseman & Co. any further or other compensation than the five per cent. It avers that that per centage was to be in full for all services to be performed by Graseman & Co. in or about the ship and her cargo during the entire voyage, including the services for which compensation is sought in this suit.

That by an agreement then existing between Graseman & Co. and Broadwood & Barclay, the charterers, it was the duty of the former to perform for the latter, the services for which compensation is sought in this action, and the defendants, by reason thereof, did not become liable therefor to Graseman & Co.

And, finally, that the services which Graseman & Co. were entitled to perform in the premises, as alleged by the plaintiff, consisted of collecting the freights due on the homeward cargo of the ship, which freights were due and payable by the owners of the cargo to the charterers, Broadwood & Barclay, and were not due to the defendants. And, therefore, if Graseman & Co. were entitled to perform the service and to receive a commission as compensation therefor, their agreement in that behalf, if any, was with and their claim is properly against the said charterers, and not with or against the defendants.

Upon this review of the pleadings, it is proper to say that the making of an agreement by the defendants with Graseman & Go. that the vessel in question should be consigned to them on her return to Europe was distinctly proved, and by evidence which was not controverted. It was no less distinctly proved that on such return she was not so consigned, but that the defendants or their agent refused to consign her to Graseman & Co. This alone is a sufficient reason why the motion for a nonsuit or dismissal of the complaint was properly denied; for upon these facts the plaintiff was at least entitled to nominal damages. The real controversy, therefore, between the parties must be regarded as relating only to the question how much the plaintiff, under the above pleadings and the proof given on the trial, was entitled to recover.

The complaint in very clear terms rests the right of recovery upon the agreement of the defendants to consign the ship to Graseman & Co., and that Graseman & Co. should be entitled to collect the freight, and to do the business of the ship upon such return voyage which it was usual for consignees to do, and should charge the defendants, and have and receive from them, the usual and customary commission or compensation for such services. The subsequent allegations of readiness to perform, and of the defendants’ refusal to permit them to do the business, and the consequent liability of the defendants to pay them the usual and customary commission, refer to the agreement so alleged, and such liability is the result of such agreement.

The complaint is therefore a claim to recover moneys which the defendants agreed Graseman & Co. should be entitled to charge to the defendants, and should have and receive from the defendants by way of commissions or compensation for services as consignees.

It does not proceed upon the idea, nor in any wise state or aver that Graseman & Co. were to be entitled to collect freight which was not due to or coming to the defendants, and thereby earn commissions which the charterers would be bound to pay or allow to them, and that by reason of the defendants’ breach of the agreement they lost the opportunity to earn such commissions and receive them from the charterers, Broadwood & Barclay, to whom the freight of the cargo on the inward voyage belonged. And yet the Jury were instructed that although they should find that the five per cent which the defendants have already paid, is compensation for collecting for the defendants the unpaid charter money, still, by the breach of the defendants’ contract to consign the ship to Graseman & Co., the latter lost the opportunity of earning commissions for the collecting the freight of the return cargo, and are entitled to recover what they might have so earned. This part of the charge is subject to some further observations, which will be hereafter suggested, but the present reference to it is for the purpose of remarking that if the five per cent was Graseman & Co.’s full compensation for collecting the charter money, there is no evidence whatever in the case that the defendants were, either by usage or by agreement, bound to pay Graseman & Co. commissions for collecting the freight of the inward cargo, which, by whomsoever collected, belonged solely to the charterers. And as the complaint seeks only to recover commissions properly chargeable to the defendants, which the complaint avers they agreed Graseman & Co. should have, and which they lost by a breach of the agreement, it is by no means clear that it was not erroneous to charge that under such a complaint the plaintiff could recover as damages for a breach of the agreement to consign, the loss of the opportunity to earn commissions from other persons; on freight belonging to the latter, which damage was not alleged in the complaint at all. In this view of the subject it is also to be observed that there is in the case much ground for believing that the only recovery which has been had herein is upon the ground that by reason of the failure of the defendants to consign to Graseman & Co., the latter lost the commissions on the freight of the return cargo, and that the Jury rejected entirely the claim that Graseman & Co. were, by the agreement, to be entitled to charge the defendants anything, or to have or receive from them any commissions or compensation for any services whatever, other than the five per cent which was paid to them. And the plaintiffs’ Counsel, in his statement prefixed to his points, states that the Jury did find for the plaintiffs their commissions, at the rate of 2£ per cent on the inward freight.

This could only be as damages for not permitting Graseman & Co., to earn and receive the commissions from the charterers, and not as an amount chargeable to the defendants, which Graseman & Co. were, by agreement, entitled to have and receive from them, for, as already suggested, there is no evidence either of usage or agreement which would make the defendants, after having received their charter money and paid all commissions for collecting it, also liable for commission on the freight of the inward cargo.

If the omission to describe and claim for such a cause of action as this instruction to the Jury recognizes, can be regarded as creating only a discrepancy amounting to an immaterial variance, this would not be fatal. The answer itself avers that the services referred to in the complaint which Graseman & Co. were entitled to perform, and for which compensation is sought to be recovered in this action, consisted of collecting the freights of the homeward cargo.

Obviously, then, the defendants have not given to the complaint the construction above stated; they seem to have understood the plaintiff to be claiming to recover commissions on the freight of such homeward cargo, and, if so, whether the claim was as damages for the loss of appellants to earn them from others, or as damages for the neglect of the defendants to permit Graseman & Co. to earn and charge the amount to the defendants, there would probably be no such variance as would prevent a recovery.

The case was evidently tried upon the theory, (to some extent resisted by the defendants,) that under the complaint the plaintiff might recover, if the proof should warrant it, upon either of two grounds.

First, if the Jury were satisfied of one state of facts, the plaintiff would be entitled to recover commissions upon the whole or some part of the charter money as commissions payable to Graseman & Co., by the very terms of the defendants’ agreement or as implied in or resulting from the agreement to consign the ship to them.

And, second, if the Jury were satisfied of another state of facts, then the plaintiff was entitled to recover as dama- ' ges for a breach of the agreement, to consign to Graseman & Co. the amount of the commissions which they would have earned and been entitled to receive from the charterers, for collecting- the freight of the inward cargo of the vessel.

The former ground conforms to the statement of the cause of action set forth in the complaint. The latter, if it does not depart from the complaint in its entire scope and meaning, is a large departure therefrom.

It is material to state these two grounds of claim and subjects of recovery as damages for a breach of the defendants’ agreement, and to keep them in mind in considering the exceptions, arising upon the admission and rejection of evidence, to be presently considered.

And it may be useful, also, to state, in general terms, the purport of some of the testimony.

The complaint having alleged an agreement to consign the ship to Graseman & Co., and that they should be entitled to charge the defendants, and receive from them in addition to the five per cent for procuring the charter, the usual and customary commissions, those allegations might (upon a liberal view of what alone, under our present system, constitutes a variance,) be proved, by evidence of an agreement to consign and pay a specified commission, which was, in fact, the usual commission; by evidence of an agreement to consign, and in terms to pay the usual commission, and proof of what rate was usual; or by evidence of an agreement to consign, and proof that according to the usage and custom of the trade, the consignee of the ship, as an incident to the consignment, received commissions therefor at a customary rate.

And under the other aspect of the complaint, viz.: that it claimed damages for the refusal to consign to G-raseman & Co., to the amount of the commissions which they might have earned by collecting the freight of the inward cargo, if the complaint might be so treated, proof that the consignee of the vessel, as an incident to the consignment according to the usage and course of the trade, collects such freight and receives such commission from the person who owns the freight, was material.

Accordingly the testimony on the part of the plaintiff and defendants, exhibits remarkable variety of views regarding the usages and custom of trade, and contradiction regarding the actual agreement.

The charter party between the defendants, as owners, and Broadwood and Barclay the charterers, which was negotiated and obtained for the defendants by Graseman & Co., secured to the defendants the round sum of twelve thousand pounds (£12,000) sterling for the whole voyage, and gave to the defendants “an absolute lien on the cargo” as security for such charter money.

When the ship reached London on her return voyage, there remained unpaid and due to the owners from the charterers, six thousand five hundred pounds (£6,500) sterling of the said charter money.

The vessel on her return voyage brought an inward cargo to London, the freight of "which, according to the bills of lading, was nine thousand six hundred pounds (£9,600) sterling, and the defendants had a lien upon such return cargo for the aforesaid balance unpaid of the charter money due to them from the charterers.

The defendants agreed to pay, and did pay to Graseman & Co., five per cent on the gross amount of the charter money, and deny that they are liable for any other or further commissions, and it was not denied on the trial, that they did not consign the vessel to Graseman & Co. on her return voyage.

The charter party between the defendants (by their agent) and the charterers, and to which they only are described as contracting parties, and which was only executed by the said agent and charterers, contains two paragraphs in these words :

“In consideration of this charter, a commission of five per cent on the gross amount of freight is now due by the owners (ship lost or not lost,) to Graseman & Co. of Ho. 2 Royal Exchange Buildings, London, for which the owners hereby give them a lien on the freight, and with them the original charter party is to be deposited.

“Likewise in consideration of this charter, the owners agree with Graseman & Co., that the vessel upon her return to Europe, is to be consigned to and reported inwards at the Custom House by them or by their agents at the out-ports, or on the continent.”

Graseman testified, that there was an express agreement between his firm and the defendants’ agent when the firm were employed to procure a charter for the vessel, by which Graseman & Co. were to receive for their services in procuring and effecting such charter, a commission of five per cent on the gross amount of chartered freight, and as a further consideration for their service, it was also agreed that the vessel on her return should be consigned to them and be reported by them to the Custom House, and they were to be entitled to charge and receive •therefor “their usual consignment commission of two pounds ten shillings per centum on the gross amount of her chartered freight.”

Obviously, if this agreement was established on the trial by competent evidence, the right of the plaintiff to recover the whole sum claimed in the complaint is clear. But the defendants’ agent unqualifiedly denied making or assenting to any such agreement, and says that he declined permitting them to procure a charter if they were going to charge a return commission of two and a half per cent as they had done on two previous voyages. That although the defendants, not having then understood the custom of the port, had agreed to it in the two previous charter parties, they should not do so agaiu, and should decline doing any more business with that charge.

Whether there was or was not any express agreement that the defendants should pay to Graseman & Go. any further or other commission than the five per cent, was the subject of distinct contradiction, and was left in doubt by this evidence.

Eesort was therefore had to evidence of the usage and custom of the trade, which, in the double aspect of the plaintiff’s claim above stated, might be useful for either of several purposes, viz.: to show that such consignment commission of two and one-half per cent on the gross chartered freight, was the customary charge, and usually paid, and create a probability that Graseman’s testimony was truthful and most entitled to belief—or to show that as an incident to the consignment to them, they would be entitled to charge such a commission to the defendants, without any terms of express stipulation, fixing their compensation as consignees of the ship inward—or to show that as an incident to the consignment, they would be entitled to collect the freight on the inward cargo, and so earn a commission and receive it from the charterers.

Accordingly proof was given relating to the usage and custom of trade at London.

Graseman testified that the usual commission charged and received by ship-brokers and merchants for collecting freights and doing the business of a ship arriving with cargo, was two and one-half per cent on the inward freight.

That his firm, when they procured charters, charged and received, (in two previous instances from the defendants, and in the case of between one and two hundred other instances in which, since 1849, they had procured charters for American vessels from the owners thereof,) five per cent for procuring the charters, and two and one-half per cent on the gross chartered freight as a consignment commission for doing the business of the ship. He does not say, however, that this charge is usual or customary with others.

Another witness states the general custom was to charge, for collecting freights and doing the business of a ship arriving with cargo, two and a half per cent “ on the gross amount of the freight earned by the ship.”

Another witness states the usual consignment commission to be two and half per cent “on the gross amount of the freight;” that he has had to pay five per cent for procuring the charter, and two and a half per cent on return for collecting the freight; and he mentions 235 instances within his knowledge, in 204 of which two and a half per cent consignment commission on the return of the ship to London was paid upon the gross freight secured by the charter, in 21 of which a less or no commission was paid, and in 10 of which a higher rate was specified, and that, in those 204 instances, the amount of the consignment commission was not mentioned in the charter party.

Other evidence tended to show that the usual commission paid by owners for effecting charters was in all seven and one-half per cent on the gross freight secured to the owners by the charter, though some of the witnesses think the two and one-half per cent consignment commission was, in all cases under their observation, expressly stipulated, or it would not be, according to the custom, payable.

On the other hand, evidence on the part of the defendants tended to show, that although consignees of a vessel, collecting the freight of the cargo which she brings, are entitled to a commission therefor, when they have had no concern in procuring the ship’s charter, and that such commission is payable by the party to whom the freight belongs, yet that this custom has no application to the relation of the owners of the ship to brokers who procure a charter, and receive a commission therefor.

Some witnesses testify that, in such last case, the broker, by the custom and usage, receives five per cent, and the vessel is consigned to him on the return, and he receives two or three guineas for reporting and entering the ship*, and the owner pays him nothing more.

Some who testify to the same effect, add that this five per cent does not cover the commission for collecting the freight on the inward cargo or bills of lading, but that that is the business of the charterer, and not paid by the owner of. the ship. While some testify that where the broker is paid five per cent for procuring the charter, that covers the collection of the freight upon the inward bills of lading.

Others, that it covers all commissions payable by the owner, including the collection of the chartered freight, if the vessel returns to London—and to that extent the collection of the freight upon the inward bills of lading—i. e., so far as such collection is for the benefit of the owner, but it does not cover the collection of such freight on the bills of lading for the benefit of the charterer.

One witness states that when it is stipulated that the ship shall be consigned to the broker on her return, the five per cent covers all his charge. But when the owner voluntarily, without any such agreement, corisigns his ship, on her return, to the same broker, the latter is allowed and charges the same commission as in cases where he did not procure the charter.

Some witnesses consider that the broker is not bound to take the consignment inward free of charge, but when he does take such consignment it is not usual to charge the owner any commission or compensation, except the fee of from two to five guineas for reporting and entering the ship.

And in stating the amount or rate of commission on consignment of vessels, and the collection of her freight, the witnesses differ as to such rate. Most of them name two and one-half per cent as usual where the broker has not received a commission for procuring a charter, or when he collects for the benefit of the charterer; and some state one and some one and a half per cent, and some make it dependent on agreement.

But the witnesses for the defendants are numerous, and the testimony overwhelming that there is no general, uniform, established usage or custom in London, under which a broker who has procured a charter and been paid five per cent on the chartered freight or gross charter money, is entitled to charge the owners another or further commission, where, by stipulation in the charter party, the ship is consigned to him on her return to London.

The case, then, on the trial, presented this condition of the proofs.

Whether there was an express agreement by the defendants to. pay Graseman & Co. two and a half per cent commission on the charter money, (£12,000,) was a question involved in great doubt by the conflict of testimony.

That there was, in the absence of any such agreement, no uniform, established, general usage or custom in London for brokers, procuring charters, and who are paid five per cent therefor, to charge or receive from the owners such a consignment commission, although the ship was consigned to them, was most convincingly proved by the defendants, and very slight proof, if any, to the contrary was given ; though instances of such payment to Graseman & Co., and one or more other houses, was testified to.

But there was evidence tending to show that had the defendants consigned the ship to Graseman & Co., they would, according to the usual course of business, have collected the freight on the inward bills of lading, and been entitled to receive from the charterers a commission, either on the whole amount, or on the excess over and above the £6,500 unpaid charter money then due to the defendants, and for which the defendants had a lien on the cargo.

This review of the trial and the condition of the case upon the pleadings and all the proofs which were given, will render the discussion of the exceptions more easy, and I trust intelligible.

The first question is one which involves the admissibility of a large portion of the plaintiff’s evidence, and is raised by numerous objections taken to testimony by the defendants and by requests to charge. The charter party containing the paragraphs which are above extracted therefrom, any evidence of a parol agreement to pay Graseman & Co. any commissions other than the five per cent, was objected to on the ground that the charter party must be taken to be the written memorandum of what was agreed on that subject. For the like reason, all evidence of a custom or usage to pay the broker any other commission than the five per cent was objected to.

We are not satisfied that the charter party is to be regarded as in any sense, the agreement between the defendants and their brokers, or even as presumptively defining all the duties which the brokers should perform, or all the compensation which they should receive. It was an agreement in form and in fact between the defend7 ants’ agent and the charterers, and its object was to define their rights as between each other. There was propriety in introducing into their agreement a recognition of the agreement to give Graseman & Co. a lien on the freight for their five per cent commission, and of the agreement to consign the vessel to them on her return. The defendr ants had a lien on the cargo for the charter money. The charterers themselves had an interest in the question to whom the ship should be consigned, and through whose hands their inward freight should pass. The stipulation might be to their advantage, or it might operate to bind them by showing their concurrence in the arrangement.

Besides, the charter party was entirely silent on the subject of the consignees’ compensation for receiving the consignment of the vessel and doing her necessary business and collecting her freights, and if, according to the uniform custom and usage of trade, the collection of the inward freights and the allowance of a commission therefor -was an invariable incident to. the consignment to Graseman & Co., then stipulating that such consignment be made to them, carried with it the incidental right to earn and receive from some one (either the owners or charterers) those commissions.

The most we think that can be claimed on this point is, that the omission to insert anything in the charter party respecting Graseman & Co.’s compensation for the consignment, (viewing these paragraphs in the charter party as-recitals) is some evidence to be commented upon and submitted to the Jury, that the owners, at least, were not to pay them any additional sum besides the five per cent which was mentioned. We think it was not conclusive, and did not preclude proof either of the actual agreement or that a right to earn further commissions was, by the usage and course of trade, an incident to the consignment which was agreed to be made to them.

This disposes of a very large number of the exceptions taken by the defendants, which arose upon the same or a similar objection to parts of the plaintiff’s evidence throughout the case.

So in relation to the objection to proof that on two other occasions the defendants had paid Graseman & Co. the two and a half per cent consignment commission, which they claimed on the whole amount of the charter money.

Until the defendants’ explanation of those payments appeared, they were some evidence, either that the defendants knew when they employed them, that that was their usual charge and had assented to its propriety, or that they knew that the charge was in conformity with the usage and custom of the trade, and, therefore, proper. And this is especially true, Avhere in one of those instances the terms of, the charter party were like that noAV in question, and was silent in respect to the subject of consignment commission. •

The objection to what the master of the vessel, (Samuel •Goodhue,) told the witness Wilkins, had it been confined to what Goodhue said was contained in the telegraphic message from one of the defendants,- (Salter,) would we think, have been well taken. It was mere hearsay. But ■the objection was general to all that passed on that occasion, and a portion of it showed that the plaintiff offered to report the ship, and declared his readiness to do the ¡ship’s business, and that the master of the ship not only refused to allow that but even to wait until the arrival of the defendant Salter. These latter facts were competent and bore directly upon the matters in controversy. The objection was, therefore,' too comprehensive, and was properly overruled.

The objection that Platenius, when inquired of in relation to the usage in London in 1854, was not shown competent to speak of the usage, having been a merchant’s clerk in London for one year, and that in 1848 and 1849, was probably well taken when made, but the subsequent testimony of the witness to his subsequent experience and acquaintance with the business, obviated the objection and rendered the exception unavailing.

The objection to the reading of certain parts of two charter parties, which are said in the case to be stricken out, and the exception of the defendants to the ruling, we cannot understand. The case does not show what parts of those charters were stricken out, or that anything was read which had been stricken out. Whether the objection was well founded or not, we cannot determine. That when an agreement is offered in evidence for the purpose of showing what was agreed to therein, it is not competent to read as parts of such agreement, clauses which were struck out before' the agreement was signed, is so obvious a proposition that we can hardly suppose that the contrary was ruled on this occasion. . And it is not obvious that parts of an agreement between other parties which were not assented to, and were struck out so as to form no part of the actual agreement, could be evidence for any purpose, unless possibly it might be to contradict some witness who had testified that those agreements did contain what was thus erased or stricken out. But, as the case is made up, the objection is not intelligible, and we cannot say the ruling was so erroneous as to call for a reversal on that ground.

We do not perceive how the letter of the defendant Salter, written in 1852, nearly two years before the charter in controversy was procured, was material, except so far as it spoke of the customary commission. As to that part of it no objection was made by the defendant, and except as to that and so much as was necessary to explain what charters Salter referred to in saying two and one-half per cent was customary “ on such charters,” it was wholly irrelevant and should have been rejected, and yet it was so utterly foreign to the matter before the Court and Jury that we do not see that the reading of it could possibly have affected the result. It is true that whatever the letter contained was a declaration of one of the defendants, and the general agent of the others authorized to do as if the ship was his own. .We should, however, be very reluctant to say that the introduction of matter so entirely irrelevant furnishes ground for giving effect to an exception and for disturbing a verdict. And yet there must be some limit even to permitting a case to be cumbered with such matter, even though we cannot see that it could have had any influence on the Jury in determining the matter in controversy.

The supposition of Salter in relation to what obligation he was incurring at the time he was negotiating for the charter, was not competent evidence, and was properly excluded. The rights of the parties do not depend on what he supposed, but on what was said, done or agreed.

The question put by the defendants to their witness, Salter, whether after his conversation with the plaintiff, (in which he had refused to permit Graseman & Co. to procure a charter upon the terms of charging the defendants two and a half per cent consignment commission,) “ he was given to understand, directly or indirectly, by the plaintiff or Graseman, that the negotiation for the last charter party was carried on, on the supposition that they were to receive a consignment commission?” was objected to when Salter’s deposition was taken, as a leading question. We incline to the opinion that the question was leading. Put to their own witness in connection with the previous course of examination, it indicated, we think, to Salter, the answer which the examining Counsel expected and desired, (See Cow. and Hill’s Notes to Phil. Ev., part 1, p. 722 ; note 502, to p. 268 of Phillips’ Text, and the authorities there collected.) The testimony, however, was in a deposition taken apparently de lene esse under the statute, and we do not understand that the statute permits the objection that a question is leading, to be raised on the trial. (2 Rev. Stat., 393, § 9.) To permit it would seem to conflict with that species of discretion which is entrusted to a Judge before whom an examination is had, to permit leading questions where he discovers that the witness testifies unwillingly, and is manifestly disposed to favor the party adverse to him who is examining him. (The People v. Mather, 4 Wend., 247.) The objection, however, which was raised at the trial, is riot stated to have been to the form of the question—it was general, and if the defendants’ Counsel did not call for the ground of objection, it may be assumed to cover any legal objection to the question; and we are of opinion that it was properly ruled out, because it sought to ascertain, not what Weber or G-raseman said to the witness, but, what impression was produced upon his mind by what passed, if anything, on the subject. What was said or done by Weber or Graseman, or whether they or either of them said anything, and if so, what, on the subject, were, if put in proper form, the competent inquiries.

The defendants’ objection to the reading of the deposition of Robert G. Barclay, was that a plaintiff is not entitled to read a deposition in evidence which was taken under a commission, issued on the part of the defendants. No other ground of objection is suggested. The statute is explicit in its terms, that such a deposition may be read in evidence on the trial, by either party. (2 Rev. Stat., 396, § 23.) The objection was properly overruled.

What has now been said, in effect, disposes of most of the exceptions to the refusal of the Judge to charge specially various propositions requested by the defendants’ Counsel, without the necessity of our discussing each.

Those requests which require the Court to instruct the Jury that the plaintiff could not recover for loss of good will, seem to us irrelevant. They were properly refused, whether as abstract propositions, correct or not, for no such claim appears to have been suggested in the pleadings or on the trial. There was no occasion to advert to the subject of damages for loss of good will, for no such damages were sought.

And on the question whether if the vessel had been consigned to Graseman & Co., they could have earned a commission on the freight by collecting the same for the charterers, Broadwood & Barclay, there was evidence that might warrant the inference that when the vessel was consigned to Graseman & Co., by the consent of the charterers expressed in the charter party, .Graseman & Co. would, according to the usage and custom of trade, have been entitled to collect the freight of the inward cargo, and have their commissions upon the whole of such freight. Some of the evidence, in regard to the incidents of a consignment and the usage of trade tended to that inference. It was, therefore, not error to refuse to instruct the Jury that Graseman & Co. would not have had a right to collect the whole of the inward freight, or that Broadwood & Barclay would have had a right to collect the balance after the rent and charter money had been collected, without paying Graseman & Co. commissions thereon, or that the recovery must be limited to two and a half per cent on the amount of charter money unpaid on the return of the ship.

But there are some exceptions to the rulings on the trial which seem to us well taken.

Against the objection of the defendants, the belief of the witness Graseman, was received, that the reason why the vessel was not consigned to them on her return to London, “ was that the owner considered that by not so consigning her, they should not be obliged to pay the consignment commission to Graseman & Co.” We consume no time in an attempt to argue that Graseman’s belief was not competent evidence! If, therefore, what he stated upon his belief was matter which might have influenced the Jury, the objection was not only well taken, but the error was a material one. How if any witness had testified, of his knowledge, that the defendants “ considered,” or that they had said that they considered that by not consigning the vessel to Graseman & Co. they should not be obliged to pay them a consignment commission, the proof would have tended strongly to the conclusion that the defendants “ considered ” that if they had consigned the ship to Graseman & Co., as they had agreed to do, the latter would have earned and been entitled to receive from them such commission. That they were conscious of this would have been an obvious inference, and so the proof would have tended to an implied admission that Graseman & Co. lost, by their breach of contract, a commission, which, had it been performed, Graseman & Co. would have earned and received. The matter so stated, on the witness’s belief, was, therefore, if it were established as a fact, not only ' material but important. The belief of the witness, however, was not competent evidence of such fact and should have been excluded.

We do not, upon a review of. all the evidence, think it probable that the admission of this evidence had an influence on the result, but we cannot judicially say that it had no effect, if the case were nicely balanced upon the other evidence. We cannot say that it might not operate to turn the scale against the defendants.

The statement of the witness, Platenius, that Graseman & Co. did more than half the business done in London with American ships, does not appear to us to have been competent testimony for any purpose. If it was designed to bear on the question of usage, in connection with what had been shown of their custom to charge a consignment commission in cases like the present, it is liable to the suggestion that proof of the custom of a particular house is not competent as proof of general usage; and yet the Jury may possibly have been influenced by the idea that what Graseman & Co. charged in more than half the business of American ships went far to establish general usage. If it did not bear on that question, it seems irrelevant. If it did not influence the Jury as suggested, it probably did no harm; and yet the Court should be very cautious in declaring judicially that evidence not competent could do no injury, and for that reason disregard an exception, although in very clear cases that may be permitted.

In answer to one of tlie interrogatories put to Graseman, and also to Wilkin, each of them stated that if the ship had been consigned to Graseman & Co. on her return voyage, “ the sum upon Avhich Graseman & Co. would have been entitled to charge a consignment commission of two pounds ten shillings per centum, was twelve thousands pounds sterling, that being the amount of the gross chartered freight of the vessel. How whether they would have been so entitled was one of the main questions, if not the sole point, in the controversy before the Court, and it depended upon the question whether the defendants agreed to pay it, or whether, by the usage and custom of the trade, it was charged and paid as an incident to the consignment. The witnesses might properly testify, and did testify, to the facts relied upon, to prove such an agreement, and they had stated all that they knew and were desired to state respecting the usage and custom. But it was hardly competent to permit them in a word to decide the very question upon which the Jury were to pass, by saying that Graseman & Co. were entitled to charge that commission and upon the whole charter money.

We are aware that it is possible to give an unobjectionable construction to this language by interpreting words of reference to what it is usual and customary throughout the trade to charge and receive, and make the witnesses say that by said usage .Graseman & Co. would receive the commission specified. But so far as Graseman had spoken of any general custom, he had only stated that two and a half per cent on the gross amount of inward freight was usually charged by brokers and others col-" lecting freights and doing the business of a ship arriving with cargo.

We think the testimony was objectionable and ought not to have been received.

The defendants, in connection with the subject of conversation between Graseman and Kingsland, one of the defendants, on the examination of the latter, put the following question, which was objected to by the plaintiff and excluded, viz.: “What was said by the plaintiff about commencing the suit in the City of New York rather than in London?”

The ground of this objection is not stated, nor did it, so far as we can discover, appear whether the conversations referred to were before or after Graseman had assigned his interest in the claim to his partner Weber. It is probable that, although the word “plaintiff” was used in the question, Graseman was the person intended thereby—and if the conversation referred to were after such assignment, then what Graseman said was not competent evidence, unless the answer would have shown some contradiction between what was said and what Graseman had testified in his deposition, or would otherwise affect his credibility. And, if the proof of the conversation was for the purpose of contradicting Graseman, then the rule requires that he should be first examined on the subject. What would have been the answer — whether it Avould have had any relevancy to the matters in issue—we cannot know. It would have been quite proper to require the Counsel to state to the Court what he designed to elicit, so far, at least, as to enable the Court to see that it would either contradict Graseman or involve some statement or admission which might legally affect the question at issue or the credibility of the Avitness. On the other hand, if by the “plaintiff” in the question Avas-intended Weber, the testimony was in its nature competent, and its relevancy could not safely be determined on the mere face of the question.

We do not discover any just ground for rejecting a portion of the testimony of the witness; Salter, (by whom the negotiation with Graseman & Co., in respect to their employment and the terms of the charter, was conducted on the part of the defendants,) in which he stated what passed between him and the plaintiff at the time. The plaintiff’s Counsel, as stated in the case objected to that portion of the witness’s answer, which relates to negotiations in respect to the amount for which the ship should be chartered. It was in that negotiation, according to the testimony of Graseman, that the payment of two and a half per cent consignment commission was agreed to. The witness, Graseman, had been asked whether there Aras any, agreement in regard to the commission or compensation which Graseman & Co. were to receive for effecting or procuring such charter, and if yea, to state fully and in detail the terms and conditions of the agreement, and further, upon what terms a charter party Avas executed. His testimony and Salter’s, in regard to any agreement to pay or allow them any consignment commission, were in direct conflict. In the answer, a part of Avhich was excluded, and in reply to a distinct question calling for the answer, (and which question does not appear to have been objected to on the trial,) Salter stated the whole negotiation relating to the charter in detail. W.e think it was competent for the defendants to have all those details, not because the terms of the charter were in dispute, but in order that the whole of the res gestee might be before the Jury just as it occurred, and that it did not embrace any such terms or conditions requiring the payment of such, commission to Graseman & Co.; for it is to be borue in mind that Salter did not negotiate with the charterers at all. The whole of the terms and conditions upon which he accepted the charter Avere settled between him and Graseman & Co., and it was proper, we think, to allow him to state all that passed on the subject. In cases of contradiction between Avitnesses, the Jury are at liberty to consider the probability of the narrative by them respectively given; to that end Salter’s account of the entire transaction was proper to be looked at. Besides, the very testimony rejected, exhibited Graseman & Co., or Weber, (one of the firm,) while he had in his possession a charter party already signed, securing to the defendants ¿£12,000 charter money, endeavoring to pursuade Salter to accept a charter at a less rate, and it may, with some plausibility, at least, be argued that it was not probable Weber knew or expected that Graseman & Go. were to have not merely five per cent, but seven and one-half per cent on the gross charter money, and yet endeavored to reduce that gross amount and with it their own commissions. We think the entire negotiation between Graseman & Go., and Salter, was competent, and the defendants should have been permitted to give it in evidence.

The witness, Barclay, when examined in relation to the usual and customary compensation for effecting charters, stated that it was five per cent; but that he did not know what service the broker renders for the commission or compensation received, and did not know whether it included the services of reporting the vessel inwards. Having thus stated his ignorance, he was permitted against the defendants’ objection to state his opinion, that the five per cent did not include the consignee’s commissions for collecting the freight upon the inward bills of lading, the collection of such freight being the business of the charterer. This opinion corresponded with the testimony of some of the defendants’ witnesses, in part, but most of them had stated that the five per cent did cover the services for collecting the freight on the inward cargo, so far as that collection was made for the benefit of the owners of the vessel as a means of securing the unpaid charter money. It was, we think, not competent to allow a witness who said he did not know what service the broker rendered for the five per cent commission, to give such an opinion. It was an opinion by one who not only was not an expert, but by one who did not profess to have knowledge of the fact.

This ruling, as also most of those above referred to which we deem erroneous, may not have been very important, but they were just grounds of exception, and it is a delicate matter for the Court to say that the defendants could not have been prejudiced thereby.

How the considerations which induced the charterers to give for the charter more than they first offered, were competent evidence for the plaintiffs, we do not perceive, when it does not appear that the defendants had any interview with the charterers, or had any knowledge of those inducements—possibly, if the defendants had been permitted to give the evidence of the whole negotiation between Salter and Graseman & Co., in which the efforts of the latter to induce him to accept less than £12,000, for the charter, appeared, the fact that Graseman & Co. had agreed to guarantee the charterers against loss, might' have been admissible by way of explanation of their apparent inconsistency above suggested, but as the case stood, it appears to us that Barclay’s testimony to what induced him to offer £12,000 for the charter, was irrelevant and improperly received.

An error, which is probably more important than any which have been mentioned, is found, we think, in the instruction to the Jury that “if they should find that the five per cent commission is compensation for collecting the amount of the unpaid charternnoney,” (i. e., the £6,500,) “and that for all collections over and above what would be sufficient to pay the unpaid charter money,” (i. e., for collecting the £3,100,) “full commissions of 2£ per cent are chargeable, then, in consequence of the breach by the defendants of the contract to consign, the plaintiffs have lost the opportunity of earning commissions for the collection of the freight of the return cargo, and are entitled to recover what they might have so earned.” To this the defendants excepted.

This instruction is so palpably inconsistent with itself, the conclusion being almost in terms a contradiction of the premises, that we greatly doubt that the case was, in this respect, correctly settled.

The unpaid charter money, when the vessel returned, was £0,500. The freight of the return cargo was £9,600, and the excess of such freight over and above the unpaid charter money was, therefore, £3,100. If then, the five per cent was full compensation for collecting the unpaid charter money, and Graseman & Go. were only entitled to charge for collecting the excess, £3,100, then obviously they have been paid for their whole service, except two and one-half per cent on £3,100, and that is all that they lost by the neglect to consign the ship to them.

If the instruction had been in terms, or if it could be construed to mean, on the hypothesis suggested, “the plaintiffs have lost the opportunity of earning commissions for the collection of the freight of the return cargo, and are entitled to recover what they might have so earned, so far as it was not covered by the five per cent,” it would have been consistent and accurate in its result.

If the instruction be taken as it stands in terms in the case, it is wrong. It instructed the Jury in effect that the plaintiffs would be entitled to recover what they might have earned by collecting the freight of the return cargo, even though they had actually received a payment which compensated them fully for collecting £6,500 thereof.

Inconsistent as the instruction appears, still we cannot say that the Jury, (if in fact instructed in the language contained in the case as settled,) were not misled by it. The amount of the verdict, ($1,531.49,) corresponds very nearly with the amount of two and one-half per cent on £9,600, (the freight of the inward cargo,) and the interest thereon, and the statement of the plaintiff’s Counsel prefixed to his points submitted on the argument of this appeal, affirms that the verdict was for the amount of the commission at two and one-half per cent on that sum. The instruction referred to permitted the Jury to find that sum, although they should find that the five per cent already paid was compensation for collecting £6,500, part thereof. We cannot say that the Jury did not render their verdict in obedience to this precise instruction.

For these reasons, we think, the judgment should be reversed, and a new trial ordered. Costs to abide the event.


source: Caselaw Access Project

author: By the Court—Woodruff, J.

license: Public Domain

text:
    James Bunten, Plaintiff and Respondent, v. The Orient Mutual Insurance Company, Defendants and Appellants.
    1. An agreement to insure a cargo tó be laden, provided the vessel sail within a given time, which agreement, though contingent as to the amount to be covered and the rate of premium, provides means for ascertaining them with certainty as soon as the lading is completed and the day of sailing fixed, is valid, and the insurers are bound to give a policy on the vessel’s sailing within the given time, and the insured is bound to pay the premium accordingly.
    2. The issuing, in consequence of such agreement, of a policy containing material errors resulting from mistake of the agent of the insurers in communicating the faqts to them, and the agent’s 'error in requiring the insured to pay a premium which is less than the rate agreed, and less than the agent was authorized to insure at, do not impair the liability of the insurers upon the original agreement; and upon a loss the insured may recover on the agreement to insure, deducting the balance of the premium unpaid.
    3. It seems that in an action of an equitable nature upon such agreement, it is unnecessary to adjudge that a new policy be issued.
    4. In a judgment entered upon a decision by the Court after trial, it is sufficient to refer to the decision without reciting its particulars, and recitals of particulars in which the decision is erroneous may bé struck out upon an appeal from the judgment, where the errors are such as to be cured by the prevailing party consenting to reduce the recovery.
    5. Whether a communication by an insurance company to their agent having a general authority to insure, that they approve of the tariff of rates which he has suggested in his letters to them, reserving their right to modify them, can be regarded as any limitation of his authority. Qumre.

    (Before Bosworth, Oh. J., and Hoffman and Woodruff, J. J.)
    Heard, April 12;
    decided, June 29, 1861.
    Appeal from a judgment in favor of the plaintiff, entered upon the decision of Mr. Justice Moncrief, before whom the cause was tried without a Jury.

      The main facts from which the controversy arises are as follows:
    The defendants, a Marine Insurance Company in New York, employed McLimont as their agent in Quebec, under a letter of authority dated December 14th, 1854.
    The agent, McLimont, did not issue policies to parties; they were always issued by the Company in New York upon his returns of risks agreed to by him.
    The plaintiff in the end of September, or beginning of October, 1855, made an application in writing to McLimont for insurance on the cargo of the Azoff, to which he agreed, the material parts of which were transmitted by him on the 16th of October to the Company.
    By this agreement the cargo was to be deemed insured, it being a condition that the vessel should sail before the 10th of November; the amount of premium, however, was not yet ascertained, it being contingent upon what should prove to be the invoice price of the cargo, and, also, upon how early in the season the vessel should sail. The details of the agreement in these respects, are stated in the opinion of the Court.
    On the 11th of October, the plaintiff’s agent instructed McLimont to have the policy specify the 15th of October as the day of sailing; but the agent failed to communicate this request to the Company, and a policy was forwarded by them to the agent, which specified that the vessel should sail on the 10th of October, and fixed the premium at three per cent. The agent of the plaintiff, on receiving the policy, called on the defendants’ agent, requesting him to alter the date of sailing, which the agent agreed to do, and did, by changing that date from 10 to 15.. According to the agreement, such extension required an additional premium of one per cent to conform to the specified rates, which called for four per cent after October 10th. But no alteration was made in the rate of premium in the policy, which remained at three per cent. The policy, as altered, was received by Mr. Bunten as the company’s policy.

      McLimonfc, the defendants’ agent, made a first return of the premium at three per cent, and afterwards an additional half per cent at the end of his statement, making three and a half per cent, and this was all the premium returned or paid.
    The cargo insured was totally lost October 29th, 1855.-
    Before the present action, the plaintiff brought an action upon the policy and recovered a verdict which was set aside, and a new trial granted; the Court holding that the agent had not authority to make such alteration in the policy. That decision is reported in 4 Bosw., 261. The plaintiff then discontinued that action, and commenced the present action to compel the defendants to issue a policy, according to the agreement; orto have the altered policy corrected or reformed by erasing the warranty to sail therein “October 10th, 1855,” and leaving a blank instead thereof, or substituting in place thereof, “November 10th or October 15th,” and by erasing the words “three per cent,” and leaving a blank instead, or by changing the words so that they shall express the rate of premium actually paid by the plaintiff to the defendants’ agent; and to recover thereon $4,317.10, with interest from the 3d December, 1855.

      Alexander Hamilton, Jr., for the defendants, appellants.
    I. To invoke the power of a Court of equity to correct a written instrument, the mistake must be shown by the strongest possible evidence; that which is entirely exact and satisfactory ; and the evidence is not such here
    II. The complaint is uncertain as to the agreement. It asks for various inconsistent alterations; and asks that the premium may be inserted according to the fact of actual payment.
    This would be making a contract for the parties according to the facts as they subsequently took place—not correcting or reforming a contract already made.
    III. In reforming a policy, much stress is always placed upon the written application or memorandum of insurance previously made; as this is the real contract.; and here the policy agrees with the written memorandum, and thus the Court must go behind this to conversations between the agents, testified to after the lapse of four or five years.
    The policy as corrected was taken and delivered as the contract. How can it be reformed ?
    IY. The policy, if reformed, would not entitle the plaintiff to a recovery. If the premium is left in blank the contract is obviously bad. If it is filled in át the amount actually paid, (three and a half per cent,) it is equally void, for the tariff rate was four, and the agent had no authority to take less, and the tariff was known to plaintiff’s agent.

      Edwards Pierrepont, for the plaintiff, respondent.
    I. The plaintiff having established the allegations of the complaint, was entitled to have defendants deliver a policy and pay to him the sum specified. (Bidwell v. The Astor Mutual Ins. Co., 16 N. Y. R., 263.)
    II. It was conclusively proved that defendants’ agent made such a contract, and that he had full authority for that purpose. It was not for the plaintiff to inquire if the agent was authorized to insure at such rates. (Perkins v. Wash. Ins. Co., 4 Cow., 645 ; Lightbody v. The North Am. Ins. Co., 23 Wend., 18 ; 2 Kent’s Com., 620, et seq., marg. paging ; Johnson v. Jones, 4 Barb., 369 ; N. Y. Central Ins. Co. v. The National Protection Ins. Co., 20 Barb., 468, 476 ; Hatch v. Taylor, 10 N. H. R., 538, 548, 549.)
   By the Court—Woodruff, J.

The testimony of James Bunten, Jr., given on the trial, was to the effect that at ór about the 1st of October, 1855, he applied to the agent of the defendants, in Quebec, for insurance on a cargo of lumber in process of being laden on board the barque Azoff. That the agent gave him a tariff of rates of premium varying Avith the days named therein for the sailing of vessels, doivn to the tenth of November, and said that the premium of insurance would be according to those rates. That he then agreed to the insurance at those rates, and the agent told him to consider the cargo insured, provided the vessel sailed before the tenth of November. That the amount insured, as then agreed, was the invoice cost of the cargo, increased by the addition of ten per cent, but that the actual amount or sum could not be ascertained until the lading was completed. That the day of sailing could not then be fixed, and the agent agreed that the premium should be fixed according to the tariff which the agent handed to him. That in the agreement there was no warranty as to the day of sailing, though the witness understood at the time that the agent could not take a risk on a vessel to sail after the tenth of November. And with that qualification the agreement was that he should pay the premium which was chargeable according to the tariff, and according to the time the vessel actually sailed or proceeded to sea.

If such an agreement as this was made by the agent of the defendants, and he had authority to make such an agreement, I perceive no ground upon which the defendants can refuse to perform it.

That this agreement was made was testified in unqualified terms, and the agreement is one which disposed of every material particular, and enabled the parties to say, the moment the lading was completed, to what amount and upon what terms the plaintiff was insured, and, even while the day of sailing remained undetermined, the scale of prices furnished the certain and precise test of the amount of premium so soon as the day of actual sailing should be known. Here are all the elements of a valid, binding agreement, certainty in its provisions, consideration and mutual assent.

That this agreement was made is also testified by McLirnont, the defendants’ witness, their agent in the transaction. He says the insurance was agreed to, that the only condition was that the vessel should sail on or before the tenth of November following. That the rate of premium was not absolutely fixed, but that it was to be in accordanee with the tariff of rates which he produced on his examination, and was to depend on the day of the sailing of the vessel. That if she sailed on or before the tenth of October, the rate was to be three per cent, if after that date and before the tenth of November, the rate was to be higher aud in accordance with such tariff. That the day of sailing of the vessel was not fixed by the contract, except that it should not be later than the tenth of November. And the precise amount or valuation of the cargo was not fixed, because the agent of the plaintiff had not received his invoice of the cost and could not ascertain such cost until the time when, her lading being completed, the vessel should sail.

Here is the testimony of the plaintiff’s agent and of the defendants’ agent and witness, and to the same purport, in respect to this agreement; and to this testimony there is no contradiction.

To my mind it establishes a valid binding agreement, under which the defendants became bound to execute a policy, insuring the plaintiff to the amount of his invoice cost with the ten per cent addition, and by which the plaintiff was bound to pay to them such premium as according to the tariff of rates above referred to was chargeable according to the time when the vessel should sail, provided, however, the agent of the defendants had authority to take a risk for them upon those terms.

The only apparent discrepancy between these witnesses in relation to these interviews is, that Bunten, the plaintiff’s agent and witness says, that McLimont, the defendants’ agent, gave him the tariff of rates, while McLimont says he did not exhibit to Bunten the list or tariff of rates of premium, but informed him what the rate of premium would be. This discrepancy is of little moment—it still leaves the important fact that the rates were communicated and agreed to, and. whether it was done orally or by showing the paper on which the tariff was written, is of no moment—it is a particular in respect to which either of those two witnesses might be mistaken, without weak-erring’ the force of their united, testimony to the agreement itself, including all its essential details and particulars, and McLimont furnishes in his testimony the means of making the contract definite as to premium, by annexing to his deposition the tariff referred to, which he says was approved by the defendants, according to which vessels sailing between the 1st and 10th of October inclusive, were to be charged three per cent premium, and vessels sailing between the 10th and 20th inclusive, were to be charged four per cent premium, and the rates increased thereafter for successive periods to and including the 10th of Hovember.

How, that the defendants’ agent had authority to bind the defendants as insurers upon risks like that offered to him by the plaintiff, cannot be denied. The letter of authority under which he acted, dated Dec. 14th, 1854, after stating the commissions to be allowed to him, and the reliance of the defendants upon his caution and discretion in the risks he should take, declares as follows : “We agree to your taking risks for us to the following extent;” * * * “3d, upon cargoes of lumber, Quebec to Great Britain and continent of Europe, in good vessels ranking not lower than A. 2, and avoiding such new vessels as are on their first trip or slightly put together, not more than $5,000 by each, with a discretion of going as-far as $7,500, on such as you consider more than ordinarily desirable,” and, after mentioning other risks he might take, the letter adds, “We approve the tariff of rates you have presented us as applicable to the several classes of risks # * * reserving our right of making such modifications as we may deem necessary.”

It is not claimed that the risk taken by the agent upon the lumber for the Azoff was not a proper risk to be taken under this letter of authority; and if so, then the utmost that the defendants can claim is, that their agent must, in fixing the premium for the risks he took, conform to the tariff referred to in the letter, or to such modifications as the Company might afterwards make. Even this is asking a great deal. What that tariff was does not appear in the case, and it did not appear in the defendants’ letter of authority, and it is not easy to see how, when the defendants had given to their agent the very large discretion which the terms of their letter import, they could have expected him to secure to them any business whatever, where the security of customers would depend upon his conforming, in respect to rates of premium, to an arrangement between the Company and him, which was not disclosed in the letter of authority, but was contained in a letter held by the Company, the customers having no means of information except perhaps the assurance of the agent himself, which alone would be insufficient to prove his authority, if proof should be necessary. It would be no violent construction to say that the letter contained a general authority to take risks of the classes designated, the concluding paragraph being merely an intimation that the Company approved the rates of premium which he, in his confidential correspondence with the Company, (which it was not designed to communicate to the customers,) had suggested. But whether the reference here made to the rates of premium be or be not regarded as a limitation of McLimont’s authority, does not, I think, affect this case in the view of the evidence above suggested.

The agreement was that the rate of premium should be paid according to the tariff of premiums, which one witness says was exhibited or given to him, and the other says was verbally stated. And this tariff is stated by the defendants’ witness, and argued strenuously by the defendants’ Counsel, to have been the exhibit B contained in the case from which the rates in the case are transcribed. And this tariff was according to the last instructions of the Company.

In this connection, however, and in reference to the construction of the authority given McLimont, and as tending to show that it was never designed to regard the rates of premiums as entering into any limitation or condition of his authority to take risks, but only as matters of private and confidential communication between Mm and them; it is pertinent to observe, that after the original letter of authority was given to McLimont, dated Dec. 14, 1854, and in which the rates of premium referred to are declared to have been presented by him, every subsequent change in the rates, and there were several, was made, not by instructions of the company originating’ with them, but on the suggestion and recommendation of Mc-Limont himself, in 1ns correspondence with them, assented to by them in reply. It is scarcely possible that the defendants for a moment supposed that McLimont would or could do any business for them if the applicants for insurance were bound to know the contents of all the correspondence between him and the company. For, although the assured would be sufficiently protected when he had actually received a policy in hand, executed by the defendants, yet the instances must be numerous in which it was important that parties should be insured from the date on wMch their application was assented to, without waiting for the receipt of a policy from New York.

The result of these observations is according to the uncontradicted testimony of the witnesses, a distinct agreement, within the authority of the defendant’s agent, for the insurance of the plaintiff at a rate of premium wMch the company had actually approved, and dependent only, by the very terms of the agreement, on the day on which the Azoff should actually sail.

If the agent had suffered the matter to rest in that stage until the day of sailing was known, or if he had sent for a policy which was in terms like the agreement, valuing the property at invoice cost and ten per cent added thereto, and for the rate of premium referring to the tariff, no question would, I presume, have arisen between the parties.

But Bunten, when he originally applied for the insurance, expressed the expectation that the vessel would sail as soon as the 10th of October, and the hope that she would get off sooner even than that.

And McLimont unfortunately in writing for the policy made quite specific the statement that she was to sail by the 10th, when in truth, as he himself now admits and testifies, that was a mere expectation and not a warranty, nor a condition of the agreement to insure, and when in truth he did not send for the policy till the 16th, and knew at the time that the vessel had not sailed on the 10th of October. And when after the receipt of the policy from Yew York, his attention was called to the mistake he had obviously made in the day of sailing, he not only exhibited his own consciousness, that in sending on the 16th October for the policy, with full knowledge received on the 11th, that the vessel had not sailed on the 10th, and would sail on or before the 15th, and in fact knowing’ that she had sailed on or before the 15th, he had made a mistake in his advices to the Company, but he showed his own conviction that he had bound the Company by his agreement with Bunten, which was in entire conformity with his powers, by making an alteration in the policy itself, so as to conform to that agreement in respect to the day of sailing, by naming the actual sailing day. But here again he blundered, not only in assuming to alter a policy without authority, but in overlooking the fact that the policy mentioned three per cent as the premium. And again when notified on the 11th, that the vessel had not sailed, he informed Bunten that the rate of premium would be 3J per cent, according to a former tariff of rates, losing sight of the amended scale of tariffs above referred to, by which the rate named after the 10th, to and including the 20th is 4 per cent, and thereafter Bunten paid him three and one-half per cent, that being all that McLimont desired him to pay. Yow if it be conceded that McLimont had no authority to insure the plaintiff at a less rate than 4 per cent, a valid binding agi’eement was made, because the plaintiff agreed to pay according to the tariff which prescribed 4 per cent for such a risk. And although mistakes were afterwards made, the plaintiff is responsible for no one of them. He made a distinct agreement; he was ready to pay afterwards, and did pay all that McLimont required. And if McLimont had no discretion to insure for or accept any less than the tariff rates, then McLimont’s taking 3£ per cent, whether in the exercise of a supposed discretion or by overlooking, as he says, at the moment the amended tariff, would not bind the defendants nor prevent their collecting the balance. Neither would such mistake invalidate the previous agreement nor relieve them from their obligation to give to the plaintiff such a policy as McLimont had agreed to, and at a rate of premium conforming to the tariff of rates to which the Company had assented, and Bunten had agreed.

I think, therefore, that the plaintiff was entitled to the relief which he sought in his complaint, in every respect but one, the premium to be allowed to the Company was four per cent instead of three and one-half, and in that particular I think the findings of fact and conclusions of law inaccurate.

The view thus taken renders the exceptions taken by the defendants on the trial, of no importance. The testimony rejected, if indeed any testimony was rejected which could, in any aspect, be material, could not affect the result above stated, because I have assumed the authority of the defendants’ agent to be just what they claim and desired and attempted to prove it to be, and all the testimony rejected was offered with a view to that precise point, viz., McLimont’s authority; except, perhaps, the question when McLimont returned or made known to the Company the premium he had received on the risk, which the defendants’ Counsel insisted upon to rebut the presumption of laches. As no question of laches was raised on the trial, and the decision, neither at Special Term nor here, proceeds upon any such idea, the question was wholly immaterial, and in no other aspect could any delay of their own agent in accounting for the premium received, affect the plaintiff. As to the letters at one stage of the trial apparently rejected, they all appear to have been, in fact, read in evidence in some stage of the trial. But whether so or not, their bearing on the question, what was the rate of premiums approved by the Company, and what was McLimont’s authority, ceases to be important, when all that the defendants claim is conceded in this respect, aud still they are held bound by the agreement, according to the views above expressed.

As already suggested, the mistakes in the preparation of a policy in which the terms “ warranted to sail October 10tli, 1855,” were inserted, and the premium stated to be “three per cent,” and the subsequent error in collecting only three and one-half per cent, were committed by McLimont, the defendants! agent, and did not impair the obligation of the defendants to issue a policy according to the actual agreement.

That agreement bound them as insurers of the cargo of the vessel, which actually sailed October 15th, 1855, at the rate of premium fixed in the then existing tariff for a vessel sailing on any day between the 10th and 20th, viz., four per cent. It would have bound them, had she sailed on a later day before November 10th, the rate of premium being in such case greater according to such tariff"; but as she actually sailed, and was represented by Bunten to have sailed October 15th, 1855, that is the proper day to have been named in such policy as the day of sailing.

The defendants are, therefore, to be regarded as having insured the plaintiff to the amount of the invoice cost of the cargo, with ten per cent added thereto, (which was $4,510,) with a warranty that the vessel should sail October 15, 1855, and at a premium of four per cent.

The loss, as settled by the written stipulation of the parties, after deducting from the valuation the small sum received by the plaintiff for proceeds of the sale of a portion of the cargo saved from the wreck, was $4,317.22, for which the defendants are liable to the plaintiff; but as by reason of the mistake abovementioned there still remains due to the defendants, one-half of one per cent on the valuation for premium in part unpaid, that is to be allowed to them in abatement from the loss, that is to say, one-half of one per cent on $4,510= $22.55, which being deducted from $4,317.22, leaves $4,294.67 as the actual amount payable according to the terms of the insurance.

It is found that the proofs of loss and of the plaintiff’s interest, (admitted by stipulation to have been duly furnished,) were presented to the defendants on the third day of December, 1855, and the loss was payable thirty days thereafter. The sum due, therefore, bears interest from the 2d day of January, 1856, which interest, at the date of the judgment, December 19th, 1860, was $1,492.28, and this being added to the principal makes $5,786.95, which the plaintiff was entitled to recover with his costs.

In preparing the finding of facts and conclusions of law, the Counsel must have inadvertently overlooked the fact that four per cent was the premium for a vessel sailing on the 15th of October, and, also, that if the warranty was extended to ¡November 10th, the premium would be eight per cent, and on settling the finding, as inserted in the case, this was not observed by the Judge at Special Term. The effect, however, was only to give to the plaintiff, by computation, a greater sum than he was entitled to; in other respects, the rights and liabilities of the parties were rightly determined.

The judgment, if permitted to stand, must be corrected in some of its terms. The plaintiff has recovered too much. The reduction to the proper amount can probably be only made by his consent. The defendants will not be prejudiced by the reduction of the amount of the recovery.

This being an action which would have been formerly called a suit in equity, in which the ultimate and final relief to which the plaintiff is entitled, viz.: recovery of the amount of his loss, could be-awarded to him, it was hardly necessary that the form of executing a policy should be required, but no objection is raised here by the appellants, on that ground. Becovery of the amount due is the substantial relief which satisfies all of the plaintiff’s demand.

¡Neither was it necessary to recite in the judgment the particulars of the decision; it is sufficient to refer to it, and as the errors above alluded to are reiterated in the recital, it should be struck out.

If the plaintiff files . his consent, that the judgment entered herein be corrected by striking from the recital therein the words “ said decision containing,” and onward to and including the words “ costs of this action ;” also by striking out of the adjudication the words “November 10th, 1855,” and inserting instead thereof the words “October 15th, 1855;” and striking out the words “ three and one-half per cent,” and inserting instead thereof the words “four per cent;” and also by reducing the amount adjudged to the plaintiff therein, by striking out the words “five thousand eight hundred and forty-one dollars and sixty-seven cents,” and inserting instead thereof “ five thousand seven hundred and eighty-six dollars and ninety-five centsand striking out the words “ sixty-three hundred and forty-two dollars and twenty-eight cents,” and inserting instead thereof “six thousand two hundred and eighty-seven dollars and fifty-six cents,” the judgment as thus modified is affirmed without costs to either party on the appeal. If the plaintiff do not give such consent, the judgment is reversed and a new trial ordered, costs to abide the event.