
    CULLBERG vs. WORKMAN.
    A broker who performs the beneficial service of bringing parties together is entitled to the commission.
    Error to Common Pleas No. 4 of Philadelphia County, No. 79 January Term, 1883.
    The charge of the Court was as follows, per
    Elcock, J.
    Gentlemen —The facts of this case are very plain. Cap. tain Cullberg called upon Mr. Workman, desiring a freight for his vessel, with the understanding that if the broker secured him a cargo, he would pay him a commision for his services. Brokers are persons whose business it is to bring buyers and sellers together, and the law is that a broker is entitled to his commission when he procures a party who actually contracts with his principal, and it does not make any difference if a sale is made with a slight variation from the original terms, provided there is no special agreement to waive the commission in such event. If Mr. Workman performed the beneficial service which resulted in the charter of the ship, then there is no reason why he should not be paid his commission. Now, the question for you to decide is, did he perform the beneficial service ? If he did,"' then you should give him a verdict for the amount claimed. If he did not, then your verdict should be for the defendant. Mr. Workman says that he worked up the cargo; that no one else but himself had proposed this Lisbon freight. And just as the business was coming to a point, the captain walks off, abandoned Workman, and divides commissions with another broker.
    Something has been said that a custom permits a captain to do this. Well, gentlemen, if there be such a custom, I must say that it is not only a bad custom, but a very piratical one; and to permit a captain all of a sudden to drop the broker who has been laboring in his service, and go off after he had discovered the secret, and split up the fees with another broker, is a practice not for a moment to be tolerated. No court would sanction such an obvious piece of injustice, and the business of a broker would not be worth pursuing.
    I leave the case with you, repeating what I have before said, that if you find that the service which Mr. Workman rendered was the efficient cause which resulted in this charter-party, then you should give him a verdict.
    Defendants points and the answers thereto were as follows :
    First. A ship broker can only recover commissions where he effectr a valid and binding contract, and cannot, where there is a failure of any essential condition.
    Which point the court answered as follows : “I affirm the doctrine set forth in the first point, and answer further, that if the ship broker brings the parties together, from which a contract results, that is, if he performs the beneficial service, he is entitled to his commissions.”
    Second. Where there is no cargo delivered, no freight is earned, there is no fund upon which to charge commissions. The plaintiffs must show that their undertaking was completed and the cargo delivered, or they cannot recover commissions in this suit.
    Which point the court answered as follows: “To the second point, I affirm so much of it as says : ‘ Where there is no cargo delivered, no freight is earned, and where no freight is earned, there is no fund upon which to charge commissions/ But I decline to charge as requested in the balance of the point, to-wit: ‘The plaintiff must show that his undertaking was completed and the cargo delivered, or he cannot recover commissions in this suit.’ ”
    Third. The plaintiff’s right to recover, if he has any such right, accrued at the time he quit work. If at that time he had failed to complete a contract and secure a cargo, there was no freight and he is not entitled to commissions and cannot recover in this suit.
    Which point the Court answered as follows: “The third point I decline to charge as there requested, and it assumes fact that plaintiff had quit work.”
    The jury rendered a verdict in favor of the plaintiff, and the defendant, Cullberg, then took this writ of error complaining of the answers to defendant’s points.
    
      Win. B. and J. Q. Lane, Esqs., for plaintiff in error,
    argued that it was a custom to pay the broker who obtained the charter party, even though other brokers had been employed; and such a custom was good; Read vs. Rann, 10 Barn & Cress, 438; Dalton vs. Irvin, 4 C. & P., 289, Broad vs. Thomas, 7 Bing., 99. The commission was not earned by Workman in this case; Jewett vs. Emson, 2 Robertson, (N. Y.), 165,
    
      John G. Johnson, Esq., contra,
    
    argued that there had not been any sufficient proof of a custom, as alleged, by the plaintiff in error; the only witness testifjdng to it not having lived in the country more than fifteen years, Cope vs. Dodd, 13 Pa., 33; Adams vs. Pittsburg Insurance Co., 76 Pa., 411; Jones vs. Wagner, 66 Pa., 429. The broker having brought the parties together, who made a bargain, is entitled to his commission; Keys vs. Johnson, 68 Pa., 42. Reed vs. Reed, 82 Pa. 420.
   The Supreme Court affirmed the judgment of the Common Pleas on February 5, 1883, in the following opinion :

Per Curiam.

The Court affirmed the point of plaintiff, that a ship-broker can recover commissions 'only where he effects a valid and binding contract, and cannot if there was a failure in any essential condition. There was no error in further saying substantially that if he brought the parties together whereby a contract was made, it was such a performance of the beneficial service as to entitle him to his commissions. If the active effort of the broker in that behalf resulted in the making of a charter-party, it was a sufficient completion of the undertaking to permit him to recover; Keys vs. Johnson, 68 Pa., 42; Reed’s Exs. vs. Reed, 82 Pa., 420. There is no cause for reversal.

Judgment affirmed.  