Page:Federal Reporter, 1st Series, Volume 2.djvu/273

 266 FEDEBAIi SEPOBTEB. �It was admîtted that the master or owner mîght hiiuBelf procure a homeward charter if he could, and would not then be bound to pay a commission to any one; or, if he pleased and could find another broker who would act for him, he might employ another broker without incurring any liability to the consignee. �It was, therefore, only a probability of employment and consequent compensation which the respondents would have acquired by having the vessel consigned to them, with the certainty that the business of entering her on her arrivai and such other service as they might perf orm while she was under the existing charter they would have to perform gratuitously. In the case of Phillips v. Briard, 1 H. & N. 21, the stipula- tion in the outward charter-party was, "the ship to be con- signed to charterer's agents in China free of commission on this charter;" language precisely similar in effect to the stip- ulation in the present case. The offer was to prove a usage by which consignees under such a stipulation were entitled to procure a homeward cargo for the ship and to charge the usual commission on the freight whether they procured it or not, provided they were prevented from procuring it by the owner or master procuring it himself or otherwise than through their agency. �But the court held that this usage was not admissible as against such a stipulation, as it would be adding to the plain language of the charter-party another and a different allega- tion, and would be in effect saying that because the vessel was consigned to the charterer's agents "free of commission" on the outward voyage, they were to be entitled to a commis- sion on the homeward cargo, whether they were employed to procure it or not, which would be not explaining but adding to the written contract. �Now, if there could be no recovery under the present stipu- lation — supposing the owner to have actually consigned the ship to the ship-brokers, and then to have, immediately on her arrivai, put her into the hands of another, broker — it is difficult to see what positive and certain damage could arise from the breach of the stipulation to consign her to them. ����