In  January, 1908, the plaintiff was engaged in the importation of cattle and in connection with that business had chartered  the steamer Solstad for a period of some months. On  or about the  28th day of January he discovered that he would have no use  for said steamer for some weeks.  He therefore called upon the defendants, Armstrong & Mackay, brokers, and requested them to find a subcharterer for said steamer in the Saigon-Manila rice trade.  After some effort the defendants were unable to  secure a subcharterer, as requested, and reported the fact to the plaintiff.  The plaintiff then suggested  that the defendants make  an effort to find a subcharterer  for said steamer in Hongkong.  After some negotiations with George Grimble (the agent of the defendants in Hongkong) two  charter contracts  were entered into  for the Hongkong-Saigon trade, for the use of said steamer Solstad. These  contracts (Exhibits C  and  D) were duly signed by the  subcharterers in  Hongkong and by  the said George Grimble, representing the defendants. These contracts  (Exhibits C and D)  were finally sent to Manila.  They were dated, respectively, the 6th  and 10th days of February, 1908.   Later the defendants entered into two contracts  (Exhibits A and B)  with the plaintiff.  The contracts A and B  were dated, respectively, the  12th and 15th days  of February, 1908.   The record does not disclose just why the contracts,  Exhibits A and B, were executed and delivered  after the contracts C and D had been executed and delivered.  The provisions of the contracts C and D and A and B are in general terms the same.  Paragraphs 16 and 17 of Exhibit C are as follows:

"16. In  consideration of  all which, charterers hereby agree to pay,  or  cause to be paid, freight to the said vessel as follows:

"(14) fourteen cents of a Mexican dollar, Hongkong currency, for every picul of 133 1/3 lbs. English, of rice and or broken rice, net weight delivered.

"(25%) twenty-five per cent additional freight for every picul of 133 1/3 lbs. English of paddy  and  or rice flour No. 1 and or broken rice No, 2, and  (50%.)  fifty per cent additional freight for every picul of 133£  lbs. English of rice flour No. 2 and or cargo broken rice No. 3, net weight delivered.

"Freight payable  in cash on right and true  delivery of the cargo as per bill of lading.

"17.  If a mixed cargo be shipped, freight to be paid at the above rate  on the estimated capacity of the vessel,  say on thirty thousand pic,uls at fourteen cents per picul."

Paragraphs 16  and 17 of Exhibit D  are in exactly  the same terms as  paragraphs 16 and 17 of Exhibit C, except that in paragraph 16 of Exhibit  D  the price of each picul of 133 1/3 lbs. English of rice,  etc.,  is  16 cents instead of 14 cents as mentioned in said paragraph 16 of Exhibit C.

Paragraphs 13 and 14 of Exhibit  A are as follows:

"13. In  consideration of all which,  charterers  hereby agree to pay, or cause to be paid, freight of the said vessel, as follows:

"(14) fourteen cents of a Mexican dollar, Hongkong currency, less 2 1/2 per cent (two & one-half per cent) for every picul of 133 1/3 lbs. English of rice, net weight  delivered.

"Freight payable  in cash on right and true delivery of the cargo as per bill of lading.

"14. If a mixed cargo be shipped, freight to be paid at the above rate  on the estimated capacity of the vessel,  say on thirty  thousand piculs at fourteen cents per picul, less 2 1/2%."

Paragraphs 13 and  14 of Exhibit A are exactly in  the same terms as said paragraphs of Exhibit B, except that in paragraph 13 of Exhibit B 16 cents was the price for each picul of 133 1/3 pounds English, of rice, instead of 14, as given in Exhibit A.

From an examination it will be seen that paragraph 17 of Exhibits C and D are practically in the same language as paragraph 14 of Exhibits A and B (with the corresponding change of  14 and 16 cents)  except that in paragraph 14 of Exhibits A and B the percentage of the defendants  of 2 1/2 per cent is provided for.  In the contracts C and D there is no provision whatever for the payment of any sum to the defendants for securing said contracts.  The theory of the attorney for the defendants is that A and B were  executed simply for the purpose  of securing a contract for  the commission of 2 1/2 per cent.

After the execution  and  delivery of the said  contracts nothing further was  done by the plaintiff until  after the Hongkong agent, George Grimble, had made his report upon the result of the said  subcharter contracts.  His  report showed that he had  received, under said  contract C, for freight, the sum of P3,440.24 (see Exhibit E) ,and under contract D the sum of P3,931.64 (see Exhibit P).   The bills and vouchers accompanying Exhibits  E and F show that under each contract,  C  and D, the charterers had carried rice, broken rice, rice flour, and paddy.  Upon  receipt of this report the plaintiff claimed that the cargo carried under each contract (C and D) was a  mixed cargo and that he was entitled to recover the sum of 14 and 16 cents, respectively, under paragraphs 14 and  17  of the respective contracts (C and D and A  and  B).

As was said, the above paragraph 17 of contracts  C and D is exactly the same as paragraph 14 of A and B, except that said paragraph 14 contains a provision for the payment of a commission to the defendants. Paragraph 17 is as follows:

"17. If  a mixed cargo be shipped, freight  to be paid at the above rate (14  cts.  and in Exhibit D,  16 cts.) on the estimated capacity of the vessel, say on thirty thousand piculs at 14 cts. per picul."

So far as this paragraph of the respective contracts C and D and A and B is concerned, the rights and obligations of the parties are the same  whether the action be brought upon one or the other of the contracts.

The plaintiff claims that by reason of the fact that the charterers under contracts C and D carried rice, broken rice, rice flour, and paddy that the cargo was a mixed cargo and that he was entitled to recover 14 cents in one case and 16 cents in the other upon the estimated capacity of the vessel, or for 30,000 piculs.  If this contention of the plaintiff is correct, then he should have recovered, under contract C (or A);  the sum of P4,200 and under contract D (or B) the sum of P4,800.

The real question, therefore, presented in the record, without reference  to the special assignments of error made  by the appellant, is whether or not the cargo, composed of rice, broken rice, rice flour, and paddy, is a mixed cargo.  If it is, then  under either  of  the contracts  the subcharterers are obliged to pay at the rate of 14 and  16 cents, respectively, on the full estimated capacity of the vessel.   It is admitted that the plaintiff has received the full amount due under the said contracts, based  upon the rate of 14  and 16 cents, respectively, for the actual freight carried, composed of rice, broken rice, etc.   The amount actually received by the plaintiff,  as shown by said Exhibits E and F, was the sum of 7,371.88 pesos, Hongkong money, while the plaintiff claims that he should have received the sum of 9,000 pesos, Hongkong money, under said contract, for the reason that the cargo was a mixed cargo.

By comparing paragraph 16 of contracts C  and D  with paragraph 13 of contracts A and B, it will be seen that the following provision of contracts C and D was not included in paragraph 13 of contracts A and B:

"(25%)  twenty-five per cent additional freight for every picul of 133 1/3  lbs. English of paddy and or rice flour No. 1 and or broken rice No. 2 and (50%) fifty per cent additional freight for every  picul of 133£ lbs.  English of rice flour No. 2 and or cargo broken rice No. 3, net weight delivered."

The defendants contend that the addition of broken  rice, rice flour, and paddy to the cargo of  rice did not make the cargo a mixed cargo.  In support of this contention the defendants presented  a decision of Sir Francis Piggott, Kt., chief justice of the colony of Hongkong (Official Law Reports, Colony of Hongkong, vol. 3, p. 86), in which the said chief justice held that - "According to the customs of the Saigon-Hongkong trade, a cargo is not a mixed cargo, within the meaning of clause 17, unless other cargo not mentioned in  the charter party, such as matches, piece goods, machinery, or fish, is shipped in the holds, together with rice, paddy, and flour."

It will be remembered that the contracts in question  were made with reference to the Saigon-Hongkong trade.  The custom,  therefore, of that trade should govern in the interpretation of the contracts in question.  It is the duty of the courts, so  far as is possible in compliance with the express provisions of law,  to adopt that interpretation given to contracts by the merchants themselves by actual practice.

Following  the interpretation given to contracts such as the one in question by the courts and the merchants in the Saigon-Hongkong  trade, and  without attempting  to define what is a mixed cargo generally, we are  of the opinion and so  hold  that  the  decision  of  the lower court should  be reversed, and the defendants are hereby  absolved from any liability under said complaint.

Without any finding as to costs, it is so ordered.

Arellano, C.  J., Torres and Trent, JJ., concur.

---

CONCURRING


MORELAND, J,,  

I concur in the result.  The basis of my conclusion is  that the instrument presented  in evidence as  the contract upon which this  action is brought was never, in effect, a contract between the parties,  and especially not for the purposes set forth in the complaint and proofs.