The custom would import a new term into the agreement. (MARTIN, B.: The difficulty I have is whether the plaintiffs were not entitled to have the evidence submitted to the jury; whether or no it would have enabled them to recover the *amount claimed is another matter.) There is no ground for saying that there was any other contract than that contained in the letter of the 10th November, 1854; and, if the custom be annexed to it, a share of the commission would be payable on all renewals of the charter, however numerous. (POLLOCK, C. B.: Without the custom the plaintiffs certainly had no case.) Karslake and Milward, in support of the rule: Evidence of the custom was admissible. There is nothing in the agreement inconsistent with the custom. As regards the New York, the defendants, in consideration of Lamont having assisted them in procuring a charter for that vessel, engaged to pay him a percentage out of their commission. But when that agreement was entered into, there was a custom among brokers that the "introducing broker" should receive from the "working broker" a share of the renewed commission upon every renewal of the charter, and there is nothing in the agreement which necessarily excludes such a custom. The circumstance that a contract is reduced to writing does not prevent a custom from attaching, if it be not repugnant to or inconsistent with the agreement: Humfrey v. Dale (1), Field v. Lelean (2), Brown v. Byrne (3). The claim for commission in respect of the Glasgow stands on a different footing, because that vessel is not mentioned in the agreement of the 10th November, but there was evidence, which ought to have been submitted to the jury, of an agreement to pay a share of the commission on the charter of that vessel also. BRAMWELL, B.: Cur. adv. vult. There I am of opinion that the rule ought to be absolute. are two questions, both of which I shall briefly advert to. One arose thus: The bankrupt, Lamont, said, "I introduced you, the defendants, to certain ship-owners, and you procured a charter for them from the French Government; and part of the bargain. between us was that I was to receive a portion of your commission; viz. 21. 10s. per cent., which, I believe, is the ordinary (1) 110 R. R. 587; 113 R. R. 964 (7 El. & Bl. 266; El. Bl. & El. (2) 123 R. R. 729 (6 H. & N. 617). ALLAN v. SUNDIUS. f *128] [ *129 ] commission allowed to "introducing brokers," as Lamont was called. Lamont also said: "The French Government has renewed the charter with the ship-owners, and you, the defendants, have received a repetition or renewal of your commission upon this renewed charter, and I claim from you a repetition or renewal of my commission, and I will prove there is a custom which entitles me to make that claim." Evidence to that effect was tendered, and rejected by my Lord: I think erroneously. There is no doubt about the principle. A custom may be annexed to documents with which it is not inconsistent. The question then is, whether this custom is inconsistent with the written agreement between Lamont and the defendants. If inconsistent or incoherent with the agreement, it cannot be annexed to it. It seems to me it would be coherent with it, because, as I understand the bargain between Lamont and the defendants, it was this: "I will receive from you 21. 10s. per cent., as my share of your commission." To my mind there would have been nothing inconsistent, if, that being in writing, the writing had gone on to say, "not only upon the first charter, but upon any renewed charter in respect of which you may get any commission from the ship-owners." Whether the evidence, if admitted, would approve that agreement it is not necessary to say. I think such a custom ought to be narrowly watched; but, nevertheless, I think that, according to law, the evidence was admissible. The other point was this: It was said by Mr. Karslake that, independently of any custom, it was a question for the jury whether the bargain between Lamont and the defendants did not extend to the Glasgow as much as to the New York. I think there was evidence to that effect, which ought to have been submitted to the jury. In my opinion, therefore, on both points, the plaintiffs are entitled to have the rule made absolute. MARTIN, B.: I am of the same opinion. The facts of the case are these: The bankrupt, Lamont, who formerly carried on business as a ship-broker at Liverpool, was examined on behalf of the plaintiffs, his assignees, and his evidence was, that, in November, 1854, he came to London, and had an interview with Duncan, one of the partners in the defendants' house, and he then communicated to Duncan that he knew of two vessels, the New York and the Glasgow, which might be chartered by the French Government (for whom the defendants were authorized to act by Messrs. Pastrie, the agents of that Government), and that Duncan agreed that he should share the commission with the defendants in respect of those two vessels. That was what Lamont proposed; and he persevered in stating that he was to have one-half of the commission. There was, therefore, his positive evidence to that effect, but there was also a variety of letters and communications between him and the defendants and the Glasgow and New York Steamship Company, which were to a great degree inconsistent with it; and I should not have been surprised, if the cause had gone to the jury, nor shall I be surprised should the case be again tried, if the jury find they do not believe parts of Lamont's evidence, and rather give credit to his writings. However, the question whether the evidence of Lamont was true or false is for the jury, not for the Court. With respect to the New York, his claim was this: That he was a party to the employment of the defendants in the sense I have stated; and he swore to an express agreement to divide the commission with them. I entertain no doubt that an "introducing broker" is entitled to receive, and does receive, from the working broker" a portion of his commission. That is a common practice in London and other places where ships are chartered. As regards the New York, the plaintiffs admit that Lamont has received all he is entitled to in respect of the first charter; and they proposed to prove a custom that, on a charter of this kind being renewed, the "introducing broker" was entitled to receive a portion of the commission payable on the subsequent charter. Whether the evidence would have established the custom, or whether the custom, when proved, would have entitled the plaintiffs to recover, I do not know; but it seems to me they were entitled to give evidence what the custom was, and that it was not competent to the Judge to reject it. With respect to the Glasgow, the claim depends on a different principle. The first communication between Duncan and Lamont took place on the 7th of November, 1854, and on the 10th a written agreement was entered into. A letter was written, stating the precise terms of the agreement between Lamont and the defendants with respect to the New York; but there was no writing with respect to the Glasgow. Now I agree that if two persons, negotiating a contract, consent to reduce it to writing, that writing is conclusively the contract. But, for the purpose of bringing that rule to bear, it must be established that the parties meant to reduce the entire contract into writing; and if it be established that only a portion of it is reduced to writing, there is nothing in law to prevent evidence being given to show what the real bargain was. *I am clearly of opinion that the letter of the 10th of November, 1854, does not refer to the Glasgow (assuming the parol evidence given by Lamont to be ALLAN r. SUNDIUS. [131] [ *132 ] ALLAN v. SUNDIUS. [ *133 ] true), and that it was intended to refer to the New York only; consequently, putting aside the custom altogether, the plaintiffs have a right to have it submitted to the jury whether they are entitled to recover in respect of the first charter of the Glasgow. That having been withdrawn from them, in my opinion there ought to be a new trial. I am of this opinion simply upon the facts of the case. There are letters in which a vast deal is inconsistent with Lamont's statement. The jury are the proper tribunal to try that; and in my opinion it was not competent for the Judge to withdraw it from them. POLLOCK, C. B.: I agree with my brother BRAMWELL that a custom such as this, which controls the written contract of the parties, and makes them agree to something which they have not expressed, ought to be carefully watched, and restrained within reasonable limits. And I own I think that, where one broker introduces a vessel to another, a custom to share the commission so long as the vessel shall be chartered by the same party, or indeed by any other party through the same broker, is of extremely doubtful legality. But I am not influenced in my decision by that consideration. A custom may, by evidence, be attached to any ordinary course of business, so as to introduce a term not inconsistent with that course of business; and undoubtedly, where one broker introduces a vessel to another, a custom may be shown that the broker so introducing it, is entitled to a share of the commission, on that particular charter; but I think such a custom cannot be extended to a special agreement between the parties, entirely independent of the usual course of business. If the relation of the parties is settled by an agreement not corresponding with the usual course of business, I think the custom ought not to be received in evidence. The case, as before me, certainly presented that aspect. The agreement with respect to the commission was entirely out of the ordinary course of business; the parties professing to act, not according to the ordinary course of business, but by their special agreement. For that reason I rejected the evidence that was offered, not as evidence of a custom controlling every agreement, but as evidence of what the custom was in the ordinary course of business. It is clear that this agreement was not in the ordinary course of business, and therefore the custom does not apply. Of course I express this opinion with some doubt, after hearing that my brothers MARTIN and BRAMWELL are of a different opinion, but I still think that what I did at Nisi Prius was correct. WILDE, B.: As I did not hear the whole of the argument on both sides, I take no part in the judgment; but, so far as I heard the argument upon the question of the admissibility of evidence of the custom, I think that the LORD CHIEF BARON was right in rejecting it, and I agree in the reasons he has given. Rule absolute. LACHARME v. QUARTZ ROCK MARIPOSA GOLD (1 H. & C. 134-141; S. C. 31 L. J. Ex. 335; 10 W. R. 565; 6 L. T. N. S. [Obsolete practice as to discovery.] GIBSON v. CRICK. (1 H. & C. 142-148; S. C. 31 L. J. Ex. 304; 10 W. R. 525; 6 L. T. N. S. 392; S. C. at Nisi Prius, 2 F. & F. 766.) The defendant, a ship-owner, being desirous of chartering a vessel, the plaintiff, a ship-broker, introduced him to S., another broker, who introduced the defendant to L., who mentioned to B. that the charter was wanted, and through the negotiations of B. with the defendant, D. chartered the vessel. The plaintiff sued for commission, alleging that an "introducing broker was entitled by custom to a share of the commission. The plaintiff's counsel proposed to ask a witness the following question: "What is the custom with regard to payment of broker's commission, when a broker introduces another broker to a ship-owner, who subsequently negotiates with the broker introduced?" Held, that the evidence was properly rejected. Semble, that such a custom would be bad in law. DECLARATION for work done by the plaintiffs for the defendants, &c. Plea: Never indebted. At the trial, before Martin, B., at the London sittings after last Hilary Term, it appeared that the action was brought to recover the sum of 60l. 18s. 4d., claimed by the plaintiffs for commission in respect of procuring for the defendants a charter of their ship, the Indus, under the following circumstances: The plaintiffs were ship-brokers, and the defendants were the owners of five ships, called the Indus, Hubertus, Oscar, Llangollen and Plantagenet. In February, 1861, the defendants applied to the plaintiffs to raise money for them on a mortgage of the Indus, stating that they were in want of charters for the ships. The plaintiffs said that they could procure charters for three of the ships, with cargoes of coals, from Wales to France. They attempted to obtain for the defendants a loan of 1,100l., but were unsuccessful. One of the plaintiffs introduced the defendant Crick to Messrs. Spicer and Fysh, brokers, in London who acted on behalf of a Coal Company in Wales. Messrs. Spicer ALLAN v. SUNDIUS. 1862. May 13. June 17. 1832. April 17. [142] |