760

FEDERAL REPORTER,

vol. 37.

If the parties, with the material now before them, cannot adjust the questions relating to the character and value of the improvements to be allowed for as of the date Apri118, 1879, in conformity with the foregoing principles and directions, those matters will be referred back to the commissioners. with directions to ascertain and report as soon as practicable the compensation to be allowed defendants according to the rule and upon the basis herein announced. One of the counsel for defendants has in his brief called the attention of the court to the fact that John Rathburn, one of the original defendants, died before the trial of the case, intestate, leaving adult and minor heirs, who have not been made parties. This should be looked to and disposed of before judgment is finally entered on the reports. .The various motions of several defendants are disallowed. The costs incident to the exceptions will be taxed against the defendants, respectively. The costs connected with the partition will be equally divided between the plaintiffs and the several defendants between whom and theplaintiffs such partition has been made. The costs incident to the commissioners'report upon the accounts for rents and improvements will await the further order of the court, when the question as to such improvements has been finally settled. All of which is ordered and decreed.

STEINBACH". MONTPELIER CARRIAGE

Co.

(C'ircuit Oourt, D. Vermont. March 2, 1889.)
1.

FACTORS· AND .BROKERS-COMMISSIONS.

The plaintiff agreed to obtain the orders of responsible parties for goods. manufactured by the defendant. and. after a number of orders had been obtained. the defendant rendered an account of sales made, and agreed to pay plaintiff any commissions that might be due him on account of such sales, reserving no right to question the responsibility of those giving the orders. Held. that as there was no proof that the defendant had suffered any ioss OD, account of alack of such responsibility, the plaintiff was entitled to recoverhis commissions without showing such responsibility.

2. SA1dE.

But plaintiff was not entitled to recover commissions on his contract with defendant for orders sent by him but which were never received. although there were circumstances from which the defendant might have inferred that such orders had been sent; the latter not having agreed to notify the plaintiffof missing orders.

At Law.

Stephen C. Shurtleff, for plaintiff.

Hiram A. HU86, for defendant.

WHEEI,ER, J. The defendant agreed to fill orders of responsible parties, obtained by the plaintiff, for goods to be made by the defendant, and to pay the plaintiff the difference between the prices at which they should be ordered above a schedule of prices at maturity of bills, and to-

STEINBACH 11.'

CO.

76..1

render an account of sales quarterly. On an account of sales rendered there was a column headed' "Merchandise on Sale," which was footed at $4,334.70. The defendant, by writing dated June 28, 1886, agreed to pay the plaintiff any commissions that might be due him on the amount marked as on sale in that statement in 90 days from the 1st of June. This amount has been found to be $1,053.57, assuming, without proof on the part of the plaintiff, that the orders so marked were given by responsible. parties. The only question made in respect to this item is whether the plaintiff is entitled to recover the amount of the item without that proof. The orders were before the parties to the agreement of June 28, 1886, when it was made. The defendant reserved no right to question the responsibility of those giving the orders. The maturity of the bills at 90 days from June 1st would determine the amount to be paid to the plaintiff, unless those to whom the goods were sent were not responsible. The time to determine whether the defendant would fill the orders or not was when the orders were received. If the orders were acc8pted, and the goods forwarded, the plaintiff would be entitled to his {Jommissions, unless he warranted the responsibility of those giving the -orders. If he did so warrant, which is not held or denied, he might be liable for any loss to the defendant occasioned by want of such responsibility, but not without proof of such 10s9 by the defendant. As the case stood before the trier, without proof either way, the plaintiff would seem to be entitled to this commission.' The plaintiff numbered his orders taken under this contract during one year extending from 1 to 586, for convenience in tracing them. Then he commenced at 1 again, and when he had got 48, transmitted them, but they did not reach the defendant. He forwarded others, numbered 49 and on. The defendant did not know that the 48 had been sent, and he did not know that they had not been received till after they could not be duplicated, .and nothing more was done in that direction. The trier has found that the defendant was guilty of negligence of duty in not informing t11,e plaintiff on receipt of order numbered 49 that none for preceding numbers had been reeeived, and that the plaintiff lost commissions on account of that negligence. The plaintiff claims to recover the amount of the commissions 80 lost. This is an action of a88UmpBit to recover the amount due the plaintiff -on the cpntract. The question whether the plaintiff is entitled to recover this amount on these facts is the only one remaining in the case. The ·defendant did not agree to notify the plaintiff of orders not received; the getting of the orders to the defendant was what he was to be compensated for. When the defendant has satisfied the commissions on orders actually received, the contract will be fulfilled. No duty as to or·ders not received arose from the contract; and damage resulting from any duty arising from other circumstances is too remote to be recovered in .an action on the contract. The referee has allowed the item of $1,053.57, .and disallowed this, which appears to be correct. Other items vary this .amount. Judgment on report for plaintiff for amount named in report.

'162

I'EDERAL BEPORTER,

vol. 87.

CALVERT 'IJ. U1qITED STATES.

(lXat1'ict (louri,. D. Soutlt (larolina.

Februarv 26, 1889.)

4, 1886.

USITEl>STATES

,A.ctCong. August 4, 1886, (24 St. at Large, 274,) Makin&, appropriations to supply deficiencie's. which expressly declares that COlI).misslOners shall receive no docket fees, amends Rev. St. U. S. §§ 828, 847, authorizing such fees, and takes away the right to them. '

COlmISSIONE:J{ll-DoCXET FEES-ACT CONGo AUG.

AtI-aw. Action by Archibald B. Calvert against the United States for docket fees as United States Commissioner. M. F. Ansel, for plaintiff., H. A. De SaU88Ure, Asst. U. S. Dist. Atty. SIMONTON, J. The plaintiff is a commissioner of the circuit court in this district. He brings his action for docket fees as such commissioner for the period 1st August,1886,to 2d January, 1888,-104 cases, at $3 each, $312. In all these cases issue was joined, and witnesses were examined. The docket was produced in evidence, and is carefully and accurately kept. The claim was duly presented, approved by the district attorney and by the court. It was disallowed by the first comptroller of the treasury; The answer in behalf of the United States sets up some purely formal objections, which are disregarded. If there be any weight inthem, the' objections can be cured by amendment. The real question raised in the answer is that,under the present law, commissioners cannot charge or be allowed docket fees. Section 847 ,Rev, St. gave to commissioners" for issuing any warrant or writ for any other service the same compensation as is allowed to clerks for like services." Section 828 gives to clerks "for making dockets and indexes, issuing venire, taxing Col!lts, and all other services on the trial or argument ofa cause where issue :is joined, or testimony given, three dollars." This entitled the commisaitiner to docket fees. U. S. v. Wallace, 116 U. S. 398, 6 Sup. Ct. Rep. 408. This decision was filed 18th January. 1886. In the act making appropriation's t<> supply deficieney in the appropriations for the fiscal year ending 80th June, 1886, and for prior years, and for other pJlrposes, lIapproved August 4, 1886," we have this provision, (24 St. at Large, 274:) "For fees of commissioners and justices of the peace acting as commissioners, $50,OOO:providt>d that for issuing any warrant or wlit, and for any other n'ecessary lIervice, commissionel'S may be paid the same compensationas is allowed to clerks for like services, but. tbey shall not be entitled to any docket . ;lsthis amendatory ofsootion'847, Rev. St.? Much argnment has beehmade showing that it is not a repeal ofthatsection, there being no repeal of the section in express words; and it is claimed, there being no such repugnancy) that thf.! section and the clause in the statute cannot