Majority
p. 214SUPREME COURT. Milliken and others agt. Byerly. New York Special Term, October 1851.
Headnote
A commission merchant who is to sell and guaranty payment, and collect the debt, is liable after the debt is due, without a demand from the purchaser. He differs from one who merely guarantees a debt which the creditor is to collect, in the latter case a demand of the principal debtor is necessary to make the guarantor liable.Motion for judgment on account of the frivolousness of the demurrer. The complaint shows that the defendant received goods from the plaintiffs to sell as a commission merchant for them, and that he was to guaranty the sales; that he rendered an account of the sales showing that part of them were due 20th April 1851, the rest on the 4th June or 23d June 1851. That after the account was rendered the plaintiffs demanded payment of the defendant, but that he neglected to pay, and that the whole is now due from the defendant to the plaintiffs.
--, for Motion.
--, Opposed.
The defendant demurs; and now alleges that the complaint should have shown a default in the purchaser.
p. 215
This is not specifically alleged; but if the purchaser were not in default then he has paid the defendant, and then clearly the defendant is liable; if the purchaser is in default it is admitted that the defendant is liable. The commission merchant who is to sell and guaranty payment, and is to collect the debt himself, differs from one who merely guarantees a debt which the creditor is to collect; in this last case it may well be that a demand of the principal debtor is necessary to make the guarantor liable.
The allegation that the defendant has sold the goods, and that the whole is due, together with the account showing the sales to have been made on 1st October at eight months, show sufficiently that the whole cause of action accrued before 18th June 1851, when the suit was commenced.
. Judgment to be entered for plaintiffs on demurrer unless defendant make affidavit of merits showing the nature of his defence.