The Northern Daily Times.
Liverpool, Merseyside, England, 1853-11-26 00:00:00

THE NORTHERN DAILY TIMES.

COUNTY COURT. v

The Court sat at ten o'clock yesterday, when several unim-
portant cases were disposed of.
CLANCY v. CLAUS : SPECIAL JURY CASE.—III this case
the following jury was sworn :—John Crosthwaite, Robert
Crookes, Wm. Christie, Wm. Carr, and Francis P. Colley.
Mr. SIMON, with Mr. HIKE, appeared for the plaintiff.
Mr. ASPINALL, with Mr. HOLDEN, appeared for the
defence.
Mr. SIMON stated the case. Mr. James Joseph Clancy
was the plaintiff, and Mr. George Claus, defendant, and the
action was brought to recover the sum of £5O, for brokerage,
for a vessel called the Zuleika, which was freighted by the
plaintiff on behalf of the defendant, as broker, in the month
of January last. The plaintiff is a broker in this town, and
the defendant is, or was, in the month of January, the
owner of the Zuleika. In that month defendant instructed
the plaintiff to effect a charter for the vessel to Australia.
The plaintiff succeeded in meeting with a gentleman named
Mr. McDonell, with whom he effected a charter for the
vessel to Australia. The charter was effected upon the terms
suggested by the defendant, with the exception of an addi-
tional condition that the charter was to be subjected to the
underwriters' approval, before twelve o'clock the next day,
the 26th, this being the 25th. The defendant approved of
this new condition, and on the following day Mr. McDonell,
called, together with the plaintiff, at the defendant's office,
and there Mr. McDonell stated that he had seen the vessel,
and that she would require considerable repairs. The de-
fendent expressed some surprise at this, but assented to the
vessel undergoing any necessary repairs, and acceeded to the
proposal of Mr. McDonell that she should be submitted to
the approval of a Mr. Bissett, or a Mr. Alexander, but for
some reason or other Mr. McDonnell refused to carry out
the contract, although he had gone so far as to give instruc-
tions to have the vessel entered outwards, and also for ad-
vertising. The defendant then determined to effect another
charter for the vessel, and he gave the plaintiff instructions
to that effect. He offered the vessel out for charter gene-
rally, and the plaintiff, at his wish, endeavoured to obtain
a new charter for him. SO anxious was the defendant to
obtain a new charter that he employed several brokers for
that purpose. At length the plaintiff succeeded iu effecting
a charter for the vessel with Messrs. Deane, Yole, and Co.,
co Pernambuco. The charter was effected for the sum of
£BOO. Mr. Clancy then applied for a settlement, and Mr.
Claus settled for the second charter, but asked for a delay of
the settlement with respect to the first until an action, which
he had brought against Mr. M'Donell should be deter-
mined. The action was brought by Mr. M‘Donell to re-
cover the difference between the second charter, £BOO, and
the first, £1,200. Mr. Clancy was called as a witness upon
the trial, and the action ended in a verdict for the plaintiff,
subject to a reference as to the damage to be assessed. After
the trial, having waited for some time, Mr. Clancy again
applied for a settlement of the account, but he was put off
from time to time upon various excuses, but never, upon any
occasion, on the ground that he was entitled to the broker-
age, or any portion of it. On one occasion he gave an order
upon the defendant for £3O to a Mr. Kenwick. Mr. Ken-
wick called upon the defendant, who told him he was unable
to pay the money at that moment, but added that there was
a sum of £6O due to Mr. Clancy in respect of his commis-
sion. Subsequently he paid plaintiff £lO, leaving the sum
of £5O due, for which the action was brought. He believed
there would be an attempt made to deny that the plaintiff
was entitled to the commission because of the result of the
arbitration to assess defendant's damages; but he contended
that this matter had nothing to do with the question, and that,
according to the custom of the trade, the broker having
done the work for which he was engaged was fully entitled
to recover the amount of his commission.
Mr. CLANCY was examined to prove the case, and stated
the facts regarding the first charter, the withdrawal of Mr.
M'Donell, the charter made with Messrs. Deane, Yole, and
Co., his applications to the defendant for payment, and the
excuses given regarding the commission upon the first char-
ter. His evidence merely bore out the statements of
counsel.
On cross-examination by Mr. Aspinall, the plaintiff stated
that he was not himself aware what took place before the
arbitrators, or whether they had made any order regarding
the commission.

Mr. KENWICK deposed to the fact of his handing to Mr.
Claus an order for £3O from Mr. Clancy, which he said he
could not then pay. Asked Mr. Claus what amount of com-
mission Mr. Clancy was to receive from him, and he replied
£6O. ,

Mr. JOHN MURPHY, clerk to Mr. Clancy, stated that
he was sent by Mr. Clancy, in August, to Mr. Claus, for
payment of £5O remaining due of commission upon the
Zuleika, and £2 Bs. for demurrage. Mr. Claus said he
had"no money, and that he would see Mr. Clancy.
Mr. ASPINALL addressed the jury on behalf of the de-
fendant. He said the case did not involve much contradic-
tion of fact, except that the defendant would deny the state-
ments, which must have arisen from some misapprehension,
that he had ever made excuses of want of money to avoid
payment of this demand, nor would the jury think it at all
likely that a man in his position, and engaged in so exten-
sive a business, would have done so. The question involved
principally required the custom of the trade. Mr. Claus
had only received altogether £BOO, and £l7O for the use of
the ship, and the question was whether the plaintiff was -en-
titled to receive £lOO as commission out of that amount-
lie thought it very unlikely that any custom could
exist which would warrant such a demand, and un-
doubtedly the trade of shipbroker ought to be
a very flourishing one if, when a ship had been fitted out by
its owner with every necessary for a voyage, the owner only
got £970, and the ship broker was to get £lOO for merely
negotiating the charters. He should be able to call before
them a number of gentlemen in the trade, who would tell
them that the commission was only payable upon the entire
amount received, or upon the two amounts added together,
ands that it was not the practice, as suggested by Mr. Clancy,
that such an enormous commission should be paid upon a
charter party which was never fulfilled. If the arbitrators
did not consider Mr. Claus entitled to recover the amount
of the two charters, he contended that Mr. Clancy was
clearly not entitled to receive the amount of the two commis-
sions.

Mr. CLAUS was examined by Mr. Aspinall, and denied
that he stated he had no money when called upon to pay the
amount of the first commission, which he only declined
doing because the question between Mr. M'Donell and him-
self was not decided.

Mr. ASPINALL put a question to the defendant regarding
the decision of the arbitrators, but the court declined to re-
ceive the answer as evidence.

Mr. ANDREW MOORE, ship-broker, deposed that in the case
of a charter depending upon conditions, the commis-
sion only became due when the conditions had been ful-
filled.

Mr. JOHN. STRONG, ship-broker, was also examined, but
was unable to say positively what the general custom of the
trade was in such a case as the present. He believed the
general custom was amongst respectable ship-brokers, that
where a ship was put into the hands of a broker to charter
her, and he did so, but afterwards that charter was never
carried out, and that, at the orders of the owner, he made
another charter upon which the vessel proceeded, commis-
sion was only charged upon that charter on which the
vessel made the voyage. Does not think any respec-
table broker would charge commission upon both char-
ters.

To Mr. Simox : Is aware of instances where disputes of
that kind arose, and can speak from his knowledge oi
them.

Mr. Simorr replied to the evidence brought forward for
the defence, contending that no answer whatever had been
given to the claim made.
His HONOR, in charging the jury, said the defence set up,
as he understood it, was twofold, first, that the defendan
never made any promise or undertaking whatever to pay
the commission,—and secondly, that if he did so, he did it in
ignorance of the real state of the law or custom upon the
subject, and that he did nothing more than make a promise,
under the supposition that he was entitled to do so, when he
really was not. That being the nature of the defence which
had been set up, it was for the jury to examine the evidence,
and to see in the first DI aPP, if —.O evtdeuee rrom
wiucu tu6, could infer that the parties had perfectly under-
stood the terms upon which they were dealing, or that there
really was a direct, express contract regarding what was to
be done, and that both parties understood the contract in
the same way. If they believed that the parties had en-
tered into a contract which each understood, then any refe-
rence to a general custom was perfectly absurd. Whatever
the, general custom might be, any two men had a right to
make any contract they pleased. If the conduct of the
parties left a doubt whether an express bargain had been
made between them, then the jury would inquire into the
general custom of the trade. In order to render that custom
binding in such a case, it must be shown to be so general, or,
he should rather say, so universal, that it should be taken as
entering into the consideration of every bargain, whether
expressed in terms or not. Now it was urged upon the part
of the defendant that the charter never was performed. He
was at a loss to know how the defendant could say as an ex-
cuse to that action that the condition of the charter was not
performed when he himself had founded his claim against
Mr. M‘Donell, upon the very supposition that it had been
performed.
_ _

Mr. ASPINALL said the question was not upon the charter
party.
His HONOR : What was the action brought for ?
Mr. ASPINALL : It was ruled by the learned judge, that
it would not lie upon the charter-party as written, and there
was a supposed verbal agreement male,
His HONOR said the exact terms were quite unimpor-
tant. It was quite clear that Mr. Claus brought the action
against Mr. M'Donell upon the supposition, that he had
entered into a valid charter-party, binding upon both. He
did not see how the defendant could have a right to say, at
one and the same time, that the condition was not perform-
ed, and, therefore, he would not pay the broker, and in the
next moment, that the condition was performed, and he
would, therefore, sue the man who had entered into the
charter party. His HONOR then read through all the evi-
dence, and again pointed out to the party the grounds upon
Which they should proceed to consider their verdict.
The Jury, after a short consideration, found a verdict for
the plaintiff for the full amount claimed.
His HONOR expressed his entire concurrence in the
verdict given.
The Court then adjourned.