Page:Federal Reporter, 1st Series, Volume 2.djvu/272

 WEIBYE V. DBESSEIi. 265 �ment among ship-brokers in Baltimore they will not accept employaient in obtaining an outward charter for any vessel already consigned to another broker, so that if the ship had been consigned to the respondents, as stipulated, they would have earned the commission of 2^ per cent, paid for obtain- ing such outward charter, together with fees for clearing her for her homeward voyage; that by reason of the breach of said charter-party the said commission and fees ■were earned and received by another firm of ship-brokers, and that the ship was consigned to them for the purpose of enabling said firm to earn and receive said fees and commission, and with intent to deprive respondents of them. �The charter is for a voyage from Hamburg to Baltimore, and the stiî)iilation is ; "The ship is to be consigned to Dressel, Eauschenberger & Co., Baltimore, free of commission ; * * penalty for non-performance of this charter-party, estimated amount of freight." �The libellant having safely transported and delivered the cargo there can be no forfeiture of the freight, and the extent to which recoupment on aceount of breach of the charter- party could in any event now be allowed would be actual damages. �The evidence offered by the libellants did not tend to prove any usage or custom by which a ship-broker, to whom a ves- sel was consigned, would bave an absohite right to procure for her an outward freight. On the contrary, the evidence tended to show that when a vessel is consigned, as in this case, "free of commission," the . ship-broker to whom she is. consigned is not eutitled to make any charge for attending. to the business of the vessel while she is under that charter ; and the only advantage to the ship-broker of having a vessel 80 consigned to him is that he has then the best chance of being employed by the master or owners to obtain for her an outward cargo, and that other ship-brokers would so far respect bis position as consignee that, by common consent and usage, they would not interfere with him, and wouli refuse to take her out of his hands. ����