Since the trial of Gore-Booth v. Barnet &Co,, the Press both here and elsewhere has been occupied in reviewing the verdict of the Jury. Curiously enough, notwithstanding the ability which has been shown in many of the articles and letters that have appeared on the subject, the real point at issue has never been alluded to. Hence grievous error has arisen. It seems have been imagined that the plaintiff in that action sued either on a quantum merit for services rendered, or for the customary brokerage on the sale of ships. This is evidently the idea that our contemporary the Daily Press of Hongkong has taken up, and his lead has been followed by other papers and by several correspondents. Now the fact is that the plaintiff sued for a certain sum of money by way of brokerage or commission on the following grounds which, in the opinion of the jury, he supported by evidence. His case was that, whether he acted as broker or merchant, he distinctly told the defendants that his terms for introducing and carrying through the business were five per cent. Itis true, he admitted that the defendants expressed an opinion that this was a larger commission than he was justified in charging, and that he was only entitled to the customary commission of a broker; but—and here is the whole gist of the case—the defendants availed themselves of the plaintiff's services and of his introduction to the Chinese Merchants Steam Navigation Ca., and through him concluded a bargain for the sale of one steamer, and subsequently without him for the sale of another. there had been no mention between the parties of the commission to be charged, a customary and usual commission could only have been recovered; but the jury found that mention was made of the commission upon which alone the, plaintiff was willing to give his services, and that the defendants, although they objected to the rate, availed themselves of the plaintiff's services, This alters the whole aspect of the case. It thus ceases to be simply a case wherein the amount of the reward is not specified and is therefore left to custom, usage, or reasonableness; and it becomes a case in which one side stipulates for a certain reward, and does perform the service for the performance of which contracted, the other side only grambling at the amount he was asked to pay; so that in fact and in truth the contract was n special one, the terms of which were not Jeff to be gathered from evidence of usage or anything else, but which were to be looked for in the contract itself.
The issue between the parties was not whether the plaintiff was to charge commission as a merchant, or brokerage as a broker, but whether he was justi-fed on the evidence in charging and recovering the per centage which he stipulated for as his price for the introduction by him of the defendants to the Company to whom they sold two steamers. No doubt a merchant or a broker, in the absence of a special contract, can only charge for such business as he does, the ordinary commission of a merchant or broker; but it is open to either to show that special terms existed, and if he does succeed in so doing to the satisfaction of a Jury, he recovers accordingly.
But those who have taken up the position of advocates for the defence, or who cavil at the verdict, will say that, admitting all this, still the defendants objected to the terms that the plaintiff proposed. They forget, however, that the defendants availed themselves of the offer of the services in question, and it may be remarked in passing that, had the defendants realised all the profits they expected, these services would have been cheaply purchased at the price demanded by the plaintiff. Let us suppose the case of a man going into a shop, asking the price of goods, receiving an answer objecting to the price asked, but nevertheless taking the goods and using them. Could it be pretended for a moment that he would not be liable to pay the price demanded by the shopkeeper, or would a Jury listen to any defence made by him founded upon his objection Again, let us assume a converse case. Suppose the ordinary brokerage or commission on the sale of goods was 24 per cent, and the seller told the broker that if he sold his goods for him, he could only afford to pay him one per cent, and that the broker grumbled, and said his services were worth his full brokerage, but nevertheless sold the goods. What would any Court or Jury say in an action brought by the broker for his full brokerage—we imagine, precisely what the Jury said in the case under consideration, viz. that it was not 2 question of what was usual or reasonable, but of what was the brokerage agreed on—as evidenced by the fact of the broker going on with the transaction, All argument, therefore, founded on the difference between brokerage charg. ed by brokers, or commission charged by merchants, is beside the question. Still less is it necessary to enter into the argument so energetically urged by the Daily Press that, because " merchant keeps a large establishment, he is therefore justified in charging a higher rate of remuneration than a broker who keeps none. The size or expense of the merchant's establishment cannot certainly be allowed to regulate his charges. These can only be governed by one "of three principles—special contract, custom, or the value of the services rendered. And this equally regulates payment to brokers.
As regards that portion of the verdict which deals with the Precursor, without being in the confidence of the Jury, we imagine that they acted on the princi. ple constantly practised among merchants, of dividing the commission between the two parties who have together effected the sale. In the case of the Precursor, the evidence showed that the defendants were themselves only working on commission, (while in the ease of the Daybreak they were principals), and the Jury seem to have considered that, having regard to all the circumstances of the case, and the short interval that elapsed between the sale of the two ships, the sale
Text read from the printed page and cleaned; old type leaves the occasional error.