#### Vernon H. Brown *et al.*plaintiffs, *vs.*Russell H. Post *et al.*defendants.

1. Commissions for procuring the charter of a vessel in the port of New York are payable as soon as the charter is effected, and do not depend upon freight being taken or earned, or upon the voyage being completed.

2. The per centage to be allowed the ship brokers is to be estimated not by the ultimate profits actually derived from the adventure, but by what they would be, if it were successful.

3. The plaintiffs, being ship brokers, procured for the defendants a charter of a vessel for a voyage from New York to Cape Town and thence to Mauritius or Batavia, the freight to be a certain sum($l) and five per cent primage, in gold, per barrel. ^ The charter-party provided that the charter money should be settled, if at Cape Town or Mauritius at a certain rate of exchange in sterling (four shilings and two pence) for the price so fixed per barrel; if at Batavia, at a certain other rate of exchange in the currency of the country (two and a half guilders) for the price so fixed. No cargo being ever supplied to the vessel, the charter was not performed. *Held*that the plaintiffs were entitled to recover, as their commissions, five per cent on the value in New York of the amount of sterling currency susceptible of being earned at Mauritius, under the instrument.

*4.*A contract to be completed in a foreign country, the compensation for which is payable in the money of account, or currency, or coin of that country, is to be considered as performable there, at least so far as the place, at which the value of such currency, money or coin is to be estimated at the *locus fori*is concerned; particularly as the charterers would have a lien on the freight at the place of delivery of the cargo.

(Before Robertson, Ch. J., and Barbour and Monell, JJ.)

Heard April 8, 1868;

decided July —, 1868,

*112*Action by*brokers for their commissions.

The plaintiffs are ship brokers. They procured for the defendants a charter of the brig “ Francis J. King.” The verdict of the 'jury establishes that they are entitled to a commission of five per cent on the amount of the charter. The charter was for a voyage from New York to Cape Town, C. G. H. and thence to Maritius.or Batavia; and the defendants were to receive for the use of the vessel one dollar, and five per cent primage in gold, per barrel. The charter-party provided that the charter money should be settled, if at Cape Town or Mauritius, at the exchange of four shillings and two pence sterling to the dollar; if at Batavia, at the exchange of two and a - half guilders to the dollar. The only question in the case was whether the amount upon which the plaintiffs were entitled to a commission was the equivalent in United States legal tender currency of the amount to which the defendants would have been entitled in foreign currency upon performing the charter, or only the same number of-legal tender dollars as the charter calls for in gold.

The jury found for the plaintiffs, and the defendants’ exceptions were ordered to be heard, in the first instance, at the general term.

*John- JE.*Parsons, for the plaintiffs.'

I. "What the parties intended is perfectly obvious. Gold, at the execution of the' charter, was selling at 212. That is, practically, the defendants intended to have for the use of their vessel, in currency, 2 12-100 times the amount in gold for which the charter stipulates; and the charterers agreed to pay this. The defendants agreed to pay the plaintiffs five per cent of this amount for their services. The plaintiffs’ services were of that value, and for the defendants to compel them to accept less is to cheat them of more than' one-half the value of their services, and of the amount on the promise of payment of which the defendants secured those services.

*113II. It is impossible to ignore the practical difference between United States gold coin and the treasury notes which congress has in certain cases made its nominal equivalent. -The United States itself recognizes practically and by its legislation that difference. The payment of duties is compelled in coin; and on certain of the treasury issues both principal and interest are made payable in coin.

III. Does then any principle of law require that the intention of the parties and good faith and fairness as between them should be violated ? We say not, for the reason that the charter-party was a contract, the charterer’s obligation in which was to be performed abroad where the defendants could have compelled payment according to the rate of exchange prescribed by it. *“*Eor the purpose of construction and ascertaining the intention of the parties the place of performance is the place of contract.” *[Monell, J. in Wilson*v. *Morgan,*4 *Rob.*58.)

IV. Cape Town and Mauritius are dependencies of Great .Britain. The charter, therefore, in terms and in effect, entitled the defendants, upon performance by them, to four shillings and two pence sterling for each gold dollar stipulated for. This amount could be recovered by action, and it is upon it that the plaintiffs are entitled to their commission. In *Wilson*v. *Morgan*the freight was payable in the United States in gold dollars.

V. The true rule where a debt payable abroad is sued here, is to give the creditor the full sum necessary to replace the money in the country where it ought to have been paid. Such is the doctrine established by the courts of the United States. *[Grant*v. *Healey,*3 *Sumner,*523. *Smith*v. *Shaw,*2 *Wash. C. C. R.*157, 168. *Story on Confl. of Laws,*§ 311.) But *Hendricks*v. *Franklin,*(4 *John.*119,) *Martin*v. *Franklin, [Id.*124,) and *Scofield*v. *Day,*(20 *id.*102,) are assumed .to establish a different rule here, in those cases the Supreme Court does lay down the rule to be that the parties are held to the par of exchange. Those cases, however, are at variance with the decisions of the United States *114courts, as has been shown; with the rule adopted by foreign jurists, *(Story’s Confl. of Laws,*§ 309; *Cash*v. *Kennion,*11 *Ves.*314;) and with the decision of our own Court of Errors, reversing the Supreme Court, where it adhered to the rule laid down in the above cases; *(Graves*v. *Dash,*12 *John.*17;) followed by the Supreme Court in *Denston*v. *Henderson,*(13 *John.*322;) and *De Rham*v. *Grove,*(18 *Abb. Dr.*43.) *Scofield*v. *Day,*(20 *John.*102,) was incautiously decided, without reference to or consideration of the decision of the court of errors in *Graves*v. *Lash.*In most of the above cases, the question arose in respect to bills of exchange, but they were all prior to our statute (3 *R. S. 5th ed. p.*70,) fixing the rate of exchange instead of the nominal par as the true rule, so that the rule established by them has general application. In *Swanson*v. *Cooke,*(45 *Barb. 574, 579,)*the rate was agreed upon. *Guiteman*v. *Davis, (Id. 576, note,)*follows the rule contended for.

VI. Since the act of February 21, 1857, there has been no legally established par of exchange for general commercial purposes. Various statutes had fixed, or continued earlier statutes, fixihg the rates at which foreign coins *should be receivable in the payment of debts and demands.*All such statutes were repealed by the act of February 21, 1857, (11 *Stat. at Large,*163.) Section 3 of which provides: “ That all former acts authorizing the currency of foreign gold or silver coins, and declaring the same a legal tender • in payment for debts, are hereby repealed; but it shall be the duty of the director of the mint to cause assays to,be made, from time to time, of such foreign coins as may be known to our commerce, to determine their average weight, fineness and value, and to embrace in his annual report a statement of the results thereof.”

*S. P. Hash,*for the defendants,

I. A full cargo was assumed and found to be 4200 barrels, which at $1 per barrel freight, with five per cent primage, came to $4410 according to a bill rendered by the plaintiffs. *115On this basis, the commission of five per cent came tó $220.50, but the question is whether the commission was payable in gold, as claimed in the bill rendered, and can be recovered at its equivalent in currency, or whether the freight can be computed in paper currency by converting the total of frieght that would have been paid in gold, if earned by performance of the voyage, into paper currency, for the purpose of computing the five per cent commission on such amount. It was on the latter computation that the amount was submitted to the jury.

1. There is not in the charter itself, nor in the testimony, any thing as to the time when, or place where, the commission was payable; but assuming that it was as alleged in the complaint, payable on the execution of the charter, then the contract was one made and to be performed in New York. The commission was five per cent, amounting, (including primage,) to $220.50. If this amount had been *expressly*payable in gold, still no greater than the nominal amount, as expressed in dollars, would have been recoverable. *(Wilson*v. *Morgan,*1 *Abb.*N. *S.*174. 4 *Rob.*58. *Rodes*v. *Bronson,*34 N. *Y. Rep.*649. *Murray*v. *Harrison,*47 *Barb.*484. 45 *id.*579, 618.)

*2.*But there was no agreement to pay the commissions in gold. Paper currency was at the time the common money o.f account by which all transactions were governed, unless the contrary was expressed. The nominal amount of freight money which the charter secured, computed in dollars, irrespective of currency, was the true basis for computation.

3. It was a roundabout and fallacious method which was submitted to the jury, that of computing the value in New York, in paper, of the freight that would have been payable in Cape Town or Batavia, in gold, or its equivalent, if "the voyage had been performed. This idea assumed that the defendants would have brought home the $4200 in gold, and that it would have been worth to them in New York its equivalent in paper currency. It overlooks the fact that *116a large portion of it would be disbursed abroad in gold or its equivalent. If the freight money had been payable, say $4200 in cotton or rice, at the port of discharge, clearly the plaintiffs would not have been entitled to estimate the value of the rice or cotton brought to Hew York. The court would say $4200 is $4200, no matter in what payable.

4. This argument also assumes that the defendants had by virtue of the charter secured for them by the plaintiffs a good claim against the charterers, if they were in default, for $4200, payable in gold, in Hew York. This is fallacious. Probably their claim would" have been limited .by the $1000 penalty. But if not, the rule of damages would have been the value of the charter, to be ascertained by deducting from the amount the voyage would have yielded, the probable cost and expense of performing it. In this estimate it is clear but one kind of dollar would have been taken into account. *(Ashburner*v. *Balchen,*3 *Seld.*262.) .

H. The primage was not properly added to the sum on which the commission was chargeable. The testimony that it is not usually included was not contradicted by the plaintiffs. The true computation, therefore, was five per cent on $4200, amounting to $210, with interest from the time the bill was rendered, December 31, 1864, to date of trial, October 23, 1867, two years and ten months—in all $251.65.

HI. But the plaintiffs were not entitled to recover. Williams & Brewster, ship brokers,, began the negotiation, brought the defendants to the plaintiffs’ office, and rendered a bill claiming commissions. At least, the plaintiffs should have been restricted to half brokerage.

IV, The case was one of hardship on the defendants. They found themselves in the hands of several brokers, each claiming commissions; there was ground for supposing that the pretended charterers, Parlow & Co. of Boston, were a myth, or Vernon H. Brown & Co. in another form, and it was certainly no case for. an extreme application of the gold question.

. V. The verdict should be set aside, or reduced to $251.65.

*117By the Court, Robertson, Ch. J.

The plaintiffs were entitled to their commissions as soon as the charter-party was executed, and were not hound to wait until it was performed. The per centage to be allowed them is to be estimated not by the ultimate actual profits of the adventure, but by what they might be, if it should prove successful. And it remains, therefore, to be determined, what that might have been, if the contemplated voyage were performed with a full cargo. The capacity of the vessel was admitted in the pleadings to have been 4200 barrels, and the rate of payment seems to have been conceded to have been that provided in the charter-party, for payment at Mauritius. It would be immaterial which-place was taken as the ultimate' destination, unless there was a difference between the value of four shillings and two pence at Mauritius, and two guilders and a half at Batavia.

The evidence showed the rate of exchange in currency, between Mauritius and Hew York, making the value of a pound sterling at the former place equivalent to about ten dollars and a half in currency here. In other words, it would require that sum paid here, to obtain a pound sterling at the former place, or that sum could be obtained here for a pound sterling there, and the defendants would be entitled to that sum in currency for every pound sterling due at Mauritius. *(Graves*v. *Dash,*12 *John.*19. *Denston*v. *Henderson,*13 *id.*322. *De Rham*v. *Grove,*18 *Abb.*43. *Story’s Confl. of Laws,*§§ 309, 311. *Cash*v. *Kennion,*11 *Ves.*314. *Grant*v. *Healey,*3 *Sumn.*523. *Smith*v. *Shaw, 2 Wash. C. C. R.*167, 168. *Guiteman*v. *Davis,*45 *Barb. 576, n.)*Foreign coins ceased to be part of the currency of the United States in 1857, (11 *U. S. Stat. at Larye,*163,) by an act which repealed all others, which either authorized their use as currency, or declared them to be a legal tender in payment of debts. They therefore were articles of merchandize only, stripped of every characteristic of being part of the currency of the country. The Revised Statutes of this state had provided *(yol.*1, *p.*771, § 20) that the amount due on a dishonored *118bill of exchange, whose contents were “ expressed in the money of account or currency of a foreign country ” should “ be ascertained and determined by the rate of exchange, or the value of such foreign currency.”

A contract to be completed in á foreign country, the compensation for which is payable in the money of account or currency or coin of that country, is to be considered as performable there, at least so far as the place at which the value of such currency, money or coin is to be estimated is concerned, particularly as the charterers would have a lien for the freight at the place of delivery of the cargo.

I regard the designation of a dollar in gold as the price of each barrel transported by the vessel in question as being purely nominal. No such gold coin existed, except in-the United States, that I am aware of, and the parties could hardly have meant that it was intended to pay in them in a foreign port. The value of the coin or denomination of money intended is fixed by the charter-party as being equivalent to *four shillings and two pence*at Mauritius and *two guilders and a half*at Batavia. If there was any difference in the value of those two amounts, it is clear that the term *“ dollar ”*was not intended to express a uniform value. It is true that there are two currencies in the United States, one in gold and the other in paper; and that the former is, or was, worth nearly half as much again as the latter; but the plaintiffs could only obtain, and the defendants would be authorized to discharge their obligation by such paper or inferior currency, and therefore it is that, that in the value of such foreign coin is to be estimated. There is no reason for treating it differently from any other article of merchandise in which the charterers of the vessel had agreed to pay the charter money. ' An agreement to pay four shillings and two pence of English currency at Mauritius, or two guilders and a half at Batavia, would entitle the payees to recover their value in paper currency at New Y ork. Without reference, therefore, to what would have been the construction of the charter-party, if it had been *119simply for the payment of so many dollars in gold, when the principles laid down in *Wilson*v. *Morgan,*(1 *Abb. N. S.*174,) *Rodes*v. *Bronson,*(34 *N. Y. Rep.*649,) and *Murray*v. *Harrison,*(47 *Barb.*484 ; 45 *id.*579, 618,) would have been applicable. I think the plaintiffs are entitled to five percent on the value in Hew York of the amount of sterling currency susceptible of being earned at Mauritius under such instrument.

Judgment must therefore be given for the amount of the verdict, with interest.

Barbour, J., concurred.

Monell, J. (dissenting.)

This being an action to recover commissions for procuring the charter of a vessel in the port of Hew York, the commissions were payable as soon as the charter was effected, and do not depend upon freight being taken or earned, or upon the voyage being completed.

It was, therefore, a contract as between those parties to be performed here, and is undistinguishable, in my opinion, from *Wilson*v. *Morgan,*(4 *Rob.*58.)

The verdict should be reduced to the amount of commissions estimated upon the freight, payable in the proper equivalent of gold; else a new trial should be ordered.

Judgment given for amount of verdict, with interest.