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ceived by the learned judge, after objection by the defendants' counsel; and the jury found that the custom was proved.

A verdict passed for the plaintiffs (the amount to be afterwards settled), with leave to move to enter a verdict for the defendants, or a nonsuit, if the Court should be of opinion that evidence of custom was not admissible.

A rule was obtained accordingly to enter a verdict for the defendants or a nonsuit, on the ground that the evidence of custom was not admissible to add to, alter, or vary the contract; or for a new trial, on the ground that evidence of the custom in the colonial market was not admissible.

H. James, Q. C., and Cohen, showed cause. The first point, as to the admissibility of evidence of a custom in the particular trade 128] *whereby the broker is held personally liable on the contract unless he disclose his principal's name, is concluded by the authority of Humphrey v. Dale ("). This custom is clearly not inconsistent with the written contract within that case. Nor is it any answer to say, that to hold the defendants liable would be to make two principals in the contract; that double liability occurs whenever a broker contracts for an undisclosed principal: Higgins v. Senior (%); Calder v. Dobell (3). But the true answer to any difficulty as to the written contract is this : The contract between the plaintiffs and defendants is the contract of employment, not the contract of sale, and the custom is attached to the employment.

[BLACKBURN, J. That is how it has always struck me; but then the declaration should have been on that contract as evidenced by the custom, in a count similar to a count on a del credere commission.]

The court has full power to amend. Secondly, the evidence as to the custom in the colonial trade was admissible as evidence in an analogous trade in the same place. In Noble v. Kennoway (f), the contract relating to Labrador, evidence was admitted of the custom in Newfoundland as to similar voyages in the fishing trade. Falkner v. Earle () is a similar decision as to different or new ports in the same country.

(1) 7 E. & B., 266 ; 26 L.J. (Q. B.), 137; ( Law Rep., 6 C. P., 486. S. C. in Ex. Ch. E. B. & E., 1004; 27 (1) 2 Dougl., 510. L. J. (Q. B.), 390.

(*) 3 B. & S., 360; 32 L. J. (Q. B.), 124. (8 M. & W., 834.

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Murphy, in support of the rule. The custom here contradicts the contract, for the name must be given on the face of the contract: otherwise the broker is to be taken as principal; which distinguishes the case from Humfrey v. Dale ("). Fairlie v. Fenton (1) is directly in point for the defendants. Secondly, no foundation was shown for the admission of the evidence of the custom in the colonial trade; there was no evidence that the two trades were in any way analogous. In Noble v. Kennoway (3) the trades of Labrador and Newfoundland were identical, both being the fishing trade. To hold that this evidence was admissible will be to go further than any case has yet gone.

*COCKBURN, C. J. I am of opinion that this rule must [129 be discharged. I quite agree in the propriety and soundness of the decision given by the Court of Exchequer in the recent case of Fairlie v. Fenton (4), where the plaintiff contracted, as a broker, for a principal named, for in that case the principal was named; and I am of opinion that the same principle would apply where the principal is not named, so long as it appears on the face of the contract that the broker is contracting, as broker, for a principal, and not for himself as principal; and in that case, also, the broker would not be liable on the contract if the principal failed to fulfil his contract. But I think, nevertheless, that the evidence of the custom was admissible, and that, after that evidence had been given, the brokers were properly held liable on the contract. For, although where a party contracts as agent there would not, independently of some further bargain, be any liability on him as principal, yet, if a man, though professing on the face of the contract to contract as agent for another, and to bind his principal only and not himself, chooses to qualify that contract by saying that he will make himself liable, though he is contracting for another, and giving to another rights under the contract, he himself will incur the same liability as his principal. Now, although, where a party professes to contract as Broker, it might prima facie be taken that he contracts without the intention of incurring liability on his own part, yet, if by the custom of the particular trade there is that qualification of the contract (which, if written into the contract in extenso, would undoubtedly bind him), that qualification may, I think, be imported into the contract by evidence of the custom. In

(1) E. B. & E. 1004; 27 L. J.(Q. B.), 390. () Law Rep., 5 Ex., 169. ) 2 Dougl,,510.

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the case of Fairlie v. Fenton (1) there was no qualifying circumstance like the custom in the present case. The defendants here undoubtedly call themselves “ brokers," acting for their principal. But if the custom attaches, the non-liability, which would under ordinary circumstances prima facie exist in a contract made by a person purporting to contract as broker, ceases, and the contract assumes a different form and character, and carries with it different legal consequences, by reason of the custom of the trade, evidence of which, according to all principles, is admissible to qualify the terms of a contract where not inconsistent with it. 130] *I am of opinion, therefore, that the evidence of custom in the particular trade, was properly received by my Brother Blackburn to fix the liability of the defendants.

I own I entertain somewhat more doubt as to the admissibility of evidence of a similar custom in other trades than the particular trade which was the subject-matter of this contract. This case seems to me to go further than the case of Noble v. Kennoway (%), which related to the admissibility of evidence of custom in the trade of Newfoundland as applicable to the custom of the trade in Labrador. Labrador had been recently annexed to Newfoundland (), and the trade in each was of the same description, it being a trade that related to fishing. By the terms of the contract (a policy of insurance) the ship was to be at liberty to call at Newfoundland, and it might be fairly inferred by persons entering into a contract with reference to the trade of Labrador, that what was the custom of the trade of Newfoundland would extent to the trade of Labrador. But this case goes further. At the same time it is impossible to shut one's eyes to the fact that the moral effect of the evidence would operate on a reasonable mind with very considerable force. If there exists a custom to the effect that the agent makes him(1) Law Rep., 5 Ex., 169.

royal proclamation. In 1774, by 14 (%2 Dougl., 510.

Geo. 3, c. 83, Labrador was made part of () The disputed territories of New- the then province of Quebec, and afterfoundland and Labrador were ceded wards in 1791, on the division of that by the French to the English by the province into Upper and Lower Canada, treaty of Utrecht in 1713, and this it became part of the lower province. cession was finally affirmed by the Finally, in 1809, by 49 Geo. 3, c. 27, s. 14, treaty of Paris in 1763; and in October Labrador was re-annexed to Newfound. of that year Labrador was annexed to land. the government of Newfoundland by

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self liable under given circumstances, in a large and extensive trade like the colonial trade, it makes it more probable. that in the fruit trade in the Mediterranean or elsewhere a similar custom would obtain. I am not quite so clear on the point, but still I do not think that the argument addressed to us goes so far as to show that this evidence was not admissible. There is no doubt that it would be useful in elucidating the truth : and, therefore, on general principles, I think the evidence was admissible, and I concur with the judgment which my learned Brothers are about to pronounce.

*BLACKBURN, J. I am of the same opinion. Upon the (131 first point I quite agree with what my Lord has said. The recent decision of the Court of Exchequer in Fairlie v. Fenton (') . was perfectly right. I take it that there is no doubt at all, in principle, that a broker, as such, merely dealing as broker, and not as purchaser of the article, makes a contract from the very nature of things between the buyer and the seller, and he is not himself either buyer or seller, and that consequently where the contract, as in the present case, in terms says, “ Sold to A. B.," or “ Sold to my principals,” and the broker signs himself simply as broker, he does not make himself by that either purchaser or seller of the goods; he is simply the broker making the contract. Then I take it that there is no doubt at all, that the rule of law laid down in the case of Higgins v. Senior (, and the other cases there cited, such as Jones v. Littledale (4), is perfectly correct, namely, that where the agent of the purchaser, though really making the contract between two principals, chooses to make the contract in writing in a form in which he declares himself to be the contracting party, he thereby says, “I am to be liable.” And though he has done this, yet, his principal also is liable; because the agent who has made the contract does bind his principal, though he has chosen to bind himself also; and it is no answer (as was held in the recent case in the Common Pleas of Calder v. Dobell (), which was affirmed in the Exchequer Chamber) to say on the part of the principal, “the contract was made by my agent, and my agent is responsible.” That the agent is liable is no answer, and no reason why the principal should not be responsible. Consequently, I (1) Law Rep., 5 Ex., 169.

(*) 6 A. & E., 486. () 8 M. & W., 834.

(*) Law Rep., 6 C. P., 486.

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agree that in the present case, if it were not for the evidence of custom, the defendants who contract for a principal “sold to our principal," and sign as brokers, would not have been liable at all upon this contract. But then there came the custom, and the evidence of custom was to this effect: that in this trade the brokers deal on these terms. The custom is that if the broker does not disclose his principal's name on the contract he is personally liable. The custom did not go to the extent, and there is not the slightest ground for saying that the custom went to 132] show, that the principal was not liable *also, or that the principal was discharged. It was simply this, that if the broker did not name the principal in his contract he incurred personal liability.

Now upon the point of whether the evidence was admissible, several questions arise upon these pleadings. If the matter were res integra, I should have felt great difficulty indeed, as some of the Judges in the Exchequer Chamber did in Humfrey v. Dale ('), in making out how the custom could make the broker, who is, in fact, not contracting as purchaser, liable in the terms of the count in that case which charged the defendant as purchaser. But Humfrey v. Dale () is binding upon us as to this point. My own impression is, that the right way to declare, if this case should ever go to the House of Lords, would be by a count analogous to a count on a del credere commission. Parke, B., in Couturier v. Hastie (), in an elaborate judgment, gives the effect of such a contract. The contract-note was like the present. was in the corn trade. There was a contract-note in which the defendants, as brokers, sold to their principal, and delivered a contract-note to the other party. The evidence of custom was that in all such cases the broker receives a del credere commission, and has the liability of a del credere agent. The objection taken to the liability of the defendants was, that there was no note in writing, and that selling on a del credere commission was a guaranteeing within the Statute of Frauds. But, says Lord Wensleydale, in delivering a considered judgment, it was nothing of the sort, “the defendants being the agents to negotiate the sale, the commission is paid in respect of that employment. A higher reward is paid in consideration

(1) E. B. & E., 1004; 27 L. J. (Q. B.), (9) 8 Ex., 40, 56 ; 22 L. J. (Ex.), 97, 390.


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