those goods shall be is not defined; it is left to the persons who are to load her. Neither the goods to be laden, nor the port to which the ship is to go, are fixed. Is it then necessary that she must at all events make an illegal adventure? . . . If this agreement, such as it is, could have been legally performed by taking certain steps afterward, the plaintiff is in that case entitled to recover a compensation for procuring the contract. Non constabat at the time when the plaintiff discharged his duty, that whatsoever was necessary to legalize the voyage would not be gotten." Mr. Justice Heath, replying to an argument that it was the plaintiff's duty to see that the matters requisite to *legal- [347*] ize the adventure were complied with, asked whether it was ever said that an attorney who drew an agreement on unstamped paper, which might be stamped afterwards, was bound to see that it was stamped, and that if he omitted he was therefore not entitled to recover for drawing the agreement because it was not stamped? The present case, however, is even stronger than that put by the learned judge, for a solicitor is presumed to have a special legal knowledge, and owes duties towards his client differing in kind from those due from a broker to his principal. It has been suggested that the authority of this case has been shaken by Holland v. Hall (i), but there appears to be no conflict between them. Premiums paid in respect of an illegal insurance cannot be recovered back, for the whole transaction is void, and the law will not aid any of the parties (j). Where the agent's right to commission depends upon a written contract, some nice questions of construction arise.1 Thus, where A. entered into a contract with B. to proceed to the coast of Africa, and there procure and ship for B. in England, palm oil and other produce, A. to receive as a remuneration for his services a commission of 67. per cent. on the net proceeds of the dry merchantable palm oil received by B.; and the agreement further provides that A. should not be entitled to any commission on "any wet, dirty, or unmerchantable palm (i) 1. B. & Ald. 53. (j) Allkins v. Jupe, 2 C. P. Div. 375. 'See this subject considered at length in the chapter on Construction and In oil" that might be received, the terpretation in Parsons on Contracts; also, a large collection of rules upon the subject in Blackwell on Tax Titles, *606 et seq. court held that A. was entitled to no commission in respect of palm oil which was in the understanding of the trade "wet" oil, though such wetness did not render the oil unmerchantable (k). So, too, where by an agreement between A. and B. it was stipulated that A. should for a term receive half the profits from the sales of an article called Russian black, manufactured by him from the produce of certain quarries of B., it was held that A. was not entitled to any commission from his employer in respect of Russian black not sold as such, but used by B. in proportion of about one-third mixed with cement and manufactured and sold by him (7). Where a letter was addressed to the agent in the following terms, "Your commissions are 67. per cent. on the net proceeds of your homeward cargo, after deducting the usual charges," the court held that the commission was payable only on the sums [348*] *actually realized after deducting bad debts and the charges (m). There was evidence that in ordinary mercantile language "net proceeds" meant proceeds exclusive of bad debts. Where, on the contrary, by an agreement an agent was to have a commission on sales effected or orders executed by him, the plaintiff to be responsible for bad debts, and the agent to draw his commission monthly, it was held that the agent was en titled to commission on bad debts, although by the custom of trade commission was not allowed on sales which produced bad debts (n). A. acted under a written agreement as the commission agent of B. in the sale of goods, and was paid a commission. B. was a contractor with the Admiralty for the supply of a variety of articles, on the sale of which A. was paid his commission. A. attended several times at Somerset House, where the patterns of the articles were inspected by the government officers. In an action by A. to recover for these attendances from B., Baron Rolfe ruled that if in giving these attendances A. was only acting in the discharge of his business as an agent, he could not charge for the attendances; but that if these attendances were matters beyond his (k) Warde v. Stuart, 1 C. B., N. S. 88. (1) Fullwood v. Akerman, 11 C. B., N. S. 737. (m) Caine v. Horsfall, 1 Ex. 519; 17 L. J., Ex. 25. (n) Bower v. Jones, 8 Bing. 65. duty as an agent he was entitled to be paid for them separately (o).1 A., a supercargo, sailed to Calabar in charge of a ship called the "Magistrate," his commission being 5 per cent. Some time after his departure the plaintiffs despatched another ship, the “ Windermere," to Calabar, with instructions to A. to find a cargo for her, and "to consider her in one turn" with the "Magistrate," and offering him, in respect of this second ship, a commission of 2 per cent. A. wrote to the plaintiffs rejecting the 21 per cent. commission, but he proceeded to load the "Windermere " nevertheless, acting as he thought best in the interests of his employers. In an action for commission for loading the latter ship, it was ruled that he was entitled only to 24 per cent. commission (p). When a claim to commission is founded upon a custom, and the custom proved is inconsistent with the claim, no part of the claim will be allowed on a quantum meruit. Hence where a shipbroker had negotiated the hire of a vessel, and a memorandum for a charter was signed by the parties, but the bargain afterwards went off owing to differences between the charterer *and the owner, the court held that the broker could not [349*] maintain an action against the shipowner to recover a commission fixed by custom or a compensation for work and labour, the custom relied on being to the effect that the broker was entitled to receive commission from the owner on the amount of freight if the contract was perfected, but not otherwise (q). "Usage," said Mr. Justice Bayley, "is the legal evidence of custom, and (0) Marshall v. Parsons, 9 C. & P. 656. 1 Where the principal, having his agent in his employ at a fixed rate, imposes upon him additional duties and enlarges his powers without stipulating that he is to receive additional compensation, the agent cannot recover any extra wages for the additional services. Moreau v. Dumagene, 20 La. Ann. 230. See, also, Dill. Mun. Corp. §§ 172, 173; City of Decatur v. Vermillion, 77 Ill. 315. This rule may, however, be modified by usage. See U. S. v. Macdaniel, 7 Pet. 1; U. S. v. Fillebrown, id. 28. Where an agent acts for a reasonable compensation, or where there is no con tract for a reasonable compensation, he will not be allowed to retain profits incidentally made in the execution of his duty, although it may have the sanction of usage. Where a person is actually or constructively an agent, all profits made in the business, beyond his ordinary compensation, are for the benefit of his employers. Jacques v. Edgell, 40 Mo. 76. See ante, p. 243. (p) Moore v. Maxwell, 2 C. & K. 554. 2 As to the effect of custom in determining the amount of the agent's compensation, see the cases cited in note, ante, p. 336. (9) Read v. Rann, 10 B. & C. 438. such cus The whole rested in upon the evidence it does not appear that there was any tom as supported the plaintiff's claim. custom, and that failing, he was not in a situation to claim anything." To the same effect it was said by Mr. Justice Parke: "The claim of the plaintiff rests on the custom, and not on a quantum meruit. The custom supposes a special contract between the parties, and if that is not satisfied, no claim at all arises, for no other contract can be implied." The case of Read v. Rann was decided in the King's Bench in 1830. Broad v. Thomas (r), a decision of the Common Pleas in the same year, was decided upon the same principle. The mere taking of a bill from one of several joint owners of a ship, who is also the ship's husband, is no legal release of the liability of his coöwners. Hence in an action for commission brought by shipping agents against all the coöwners of a ship, with the exception of one, D., the ship's husband, the mere fact that the plaintiffs, knowing that the defendants were coöwners of a ship with D., took a bill from him for the amount due to them, and proved against his estate in respect of such bill, is not sufficient to discharge the defendants (8). There is a class of cases in which the agent has been engaged for a definite period at a fixed salary, with or without an additional commission, varying with the amount of business transacted by him on behalf of his principal. If the agent is prevented by the principal's default or bankruptcy from completing his services under the agreement, the amount he will be entitled to claim must depend upon the terms of the agreement. If it fixes the amount payable upon the happening of any such an event, further calculation will not be needed, and he will be entitled to claim the sum named in the agreement (t). It is pre (r) 7 Bing. 99. (s) Bottemley v. Nuttall, 5 C. B., N. S. 122; 28 L. J., C. P. 110; Keay v. Fenwick, 1 C. P. Div. 745. (t) Ex parte Logan, L. R., 9 Eq. 149. Where by the terms of a contract between principals and their agent, it is stipulated that the agent should receive ten per cent. on the entire amount of sales made by him, and that, if the principals should resume control so that the agency would cease, then the agent should be paid "in proportion to the services rendered by him previous to the closing of his connection with their business," it is error to instruct the jury in a suit by the agent whose agency has been so terminated, that he is entitled to recover whatever the evidence might show that his services actually performed were reasonably worth. McCormick v. Bush, 47 Tex. 191. sumed, however, that this will be the rule only when the amount named in the agreement can be taken to be the reasonable damages, and not greatly in excess of the sum to which [350*] the agent would become entitled in the event of the agreement being fully performed. If, on the other hand, the agreement makes no provision for the happening of such an event, then the agent will be entitled to the value of his salary for the full period of his engagement, subject, it may be, to certain deductions, as in Yelland's case (u). But if the agent is to be paid a commission, he may make no claim in respect of prospective commission, but will be limited to what he has actually earned (x). In Yelland's case (y), 1867, Y. was engaged as manager of a bank for a term of five years, with liberty to act as agent for another company, at a salary of not less than 5007. a year. Before the expiration of the agreement the bank stopped payment, and Sir W. Page-Wood, V.-C., held that Y. was entitled to claim the value of an annuity of 5007., terminating on the day on which the agreement expired, subject to a deduction, the amount of which was calculated at chambers, by reason, first, of his having been at liberty to act as agent for another company under the agreement; and, secondly, of his freedom upon the winding-up of the bank to seek fresh employment.1 This decision was acted upon in 1869 by Vice-Chancellor James, in Ex parte Clark (2), although some doubts existed whether the agreement in that case was not ultra vires. The question came before the court on an application by the liquidators of a limited trading company, that C. might be ordered to pay the sum of 1,000l. in respect of a call of 207. per share. C. (u) Infra. (x) Ex parte Maclure, infra. (y) L. R., 4 Eq. 350. 1In an action by an agent against an insurance company for damages resulting from his discharge during the term of his engagement, his measure of damages is the amount he has lost in consequence, and the testimony of actuaries as to the probable value of renewals for the remainder of his term, on policies already obtained, is important in arriving at the result. But an estimate of his probable earnings there- |