¶1I concur in the decision of the Court in this case, except upon one point: that is, in relation to the freighting of the defendant’s oil and bone to New Bedford. Upon that point, I respectfully dissent from the opinion of my brethren, for the following reasons: j
¶2Firstly — Because the agency of Coady, and Coady & Co., and their duty in relation to that subject, were entirely distinct from their agency in. fitting out the vessels, as ships’s husbands.
¶3Secondly — Because Coady, and Coady & Co., undertook this agency for a stipulated commission of five per cent.; but it appears by the evidence, that in the transaction of such agencj', they made a considerable incidental profit, which the plaintiffs now seek to retain, or to recover, in addition to the stipulated commission. In my opinion, the plaintiffs are not legally entitled to retain, or .to recover that incidental profit from the defendant, in the absence of express proof that he consented to deal with Coady, and Coady & Co., as principal freighters, so as to discharge them from their relations and obligations to him, as simple agents for hire. I know of no case in the books, in which it has been held that freight-brokers, factors, or other like agents, can recover for their services any profit made by them in the transaction of their agency, besides their commissions and expenses ; nor can I perceive that the cases cited by the Court have any bearing upon this point; and I consider the doctrine adhered to in the cases of East India Company vs. Henchman, Bentley vs. Craven, and Massey vs. Davies, as clearly applicable to this part of the present case.