Cook v. Fiske

Bigelow, J. The instructions given to the jury were clearly right. The plaintiff had performed his whole duty as a broker or middleman when he had brought the parties together and they had negotiated the terms on which the vessel was to be let by the defendant for the proposed voyage. A charter party was not essential to the validity of the contract for the hire of the vessel. The verbal agreement was obligatory, and the defendant might have enforced it, if he had seen fit to do so. Taggard v. Boring, 16 Mass. 336. He cannot set up his own wilful refusal to fulfil the contract as a ground of defence to the plaintiff’s claim for compensation. It is a well settled and sound principle of law that he who prevents a thing being done shall not avail himself to his own benefit of the non-performanc» which he has occasioned. Nullus commodum capere potest de injuria sua proprio. The evidence offered by the plaintiff was sufficient to show the rate of compensation to which he was entitled for the ser vices which he had rendered, and this was not controlled by the testimony adduced by the defendant to prove a custom or usage 494 by which a commission on the amount to be paid for the hire of the vessel was not paid to a broker unless a charter party was actually signed. The plaintiff had made out a case which, according to well settled principles, entitled him to recover. The evidence offered by the defendant fell far short of establishing a usage of trade sufficiently well known and universal to vary or override the rules of law applicable to the facts in proof. Exceptions overruled.