The only other matter remain ing is the question of the charges and commission sought to be de ducted by the defendants. No doubt these are always charged on sales on consignment and the plaintiff, by his lawyer's letter of March 19, 1921, does not dispute the figure stated by the defendant, and in an ordinary case I should M have held there was an implied contract to pay them. But this case is different: the defendant has on two occasions admitted that he owes this amount without any deduction of charge or commission. On December 4, he went so far as to enclose a cheque for £46/4/10 for the difference between that sum and the claim on other contracts—a difference in favour of plaintiff. If that cheque had been accepted, I cannot believe he could afterwards have been heard to claim this commission. It was not accepted, however; and on December 22 he notifies the plaintiff that he has taken up the exchange contract and holds the taels he has received (i.e., the equivalent of the £2,800) in part payment of the claim which now exceeds that amount. Whether this is to Lo called an estoppel or a waiver, it seems to me that it prevents the defendant from saying it was only provisional; and I hold he is not entitled to now deduct those charges and a commission.
I therefore give judgement for the plaintiff for Tls. 9,142.85, being the nel equivalent of £2,500 at 6/13.
Mr. H. P. Wilkinson applied for costs on behalf of plaintiffs, and Mr.
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