Plaintiff sued defendant to recover $45, brokerage commission for procuring a charter for the American schooner Almatia, for a age to Tientsin, fendant did not dispute contingent liability for the debt, but said he withheld payment of the money until he received a latter from the Captain of the schooner as to whether the vessel had got over the bar at ak, without having to go to the expense of lightering. The depth of water on the Taku bar was about 124 fect, and after the vessel had been loaded to a sufficient draught, the det dant caused 00 packages of paper to be put on board, thereby increasing her draught to about 134 feet. In order to get this extra cargo put on board, the plaintiff promised to luce a letter from the charterer of the el at Tientsin, securing the payment of lighterage dues should suck: be incurred. He had not produced the letter, and he (defendant) thought the plaintiff was not entitled to his brokerage until the letter was produced, as it was a stipulation in chartering the schooner and was part of the him. He did not kno case, but his firm were simply agents for th schooner, and if they paid the plaintiff hi claim, and it was repudiated by the schooner owners, they would have to sue the owners in an American Court. If the ease could be adjourned for a few days to enable the Captain to send a letter saying whether she was over the bar or not, a great deal of time and trouble would be saved. If she could not get over the bar without lightening her cargo of the 800 packages, placed on board by the plaintiffs representations, a great deal more than $45 would have to be expended, which they desired to hold plaintiff responsible for until he produced the letter he had promised from the charterer at Tientsin.
His Hoxour—There is noagreementbetween you that this brokerage shall be kept back until you receive information as to whether the schooner has got over the bar?
Defendant—No, there was no agreement made about it.
His Hoxour—Then you cannot set it up asadefence. It is a principle of law that you cannot in the absence of an express agreement to that effect keep back money actually due because of something that may or may not occur, The plaintiff was entitled to his brokerage as soon as the charter was complete. You are bound to pay the money.
Defendant—But if the Captain writes that we are not to pay it because of the expense of lighterage, what are we to do?
His Hoxour—I cannot see how you can make the broker liable for lighterage, nor how I can adjourn the case. There is no evidence of contract that plaintiff has consented to wait for his brokerage, and doubt whether you can make him liable for lighterage under any of the circumstances you have named.
Defendant—We did not engage the plain-we had in fact spoken to another man about the charter, but the plaintiff was preferred on the part of the schooner and char-torer. We therefore consider that we per-anally do not owe him the money, and, as we have no money belonging to the schooner in our possession, if. we pay before being certain she is over the bar, it will be at our own: risk of getting it back again.
His Hoyovr—You must claim against the charterer.
Defendant—And commence a suit that would be likely to last for months. A Chinaman once getting dollars in his hands, does not let them go again very easily His Hoxour—The only doubt in my mind is as to whether you are personally responsible for payment of this money; but where a Captain engages an agent to negotiate a charter for him, he impliedly gives him authority to pay all charges, But I will reserve judgment until to-morrow morning.
Text read from the printed page and cleaned; old type leaves the occasional error.