Ferris v. Paris — 10 Johns. 285

Majority

p. 289

Ferris against Paris and others.

ALBANY,

August, 1813.

Headnote

A factor or pr^mg^is1" ^"‘sSe off goods^consign-may wait to receive direclions as to the g0^6' net proceeds, wed ’to^n ac" defauUon'his part,in remitiñg the pro®ne|d® the°orllls 1

THE plaintiff, a merchant residing at New-York, consigned goods to the defendants, merchants at Martinique. The plaintiff brought an action of assumpsit, to recover of the defendants the proceeds of the goods so consigned. The cause was tried at the sittings in New-York, the 10th of November, 1812, before •Ti/r T cf ijlr. Justice i^pCHCCi •

The plaintiff gave in evidence the account of sales of the goods rendered to him, by the defendants, dated at Martinique, the 20th of January, 1809, the net proceeds being 6,260 livres. On the 29th of April, 1809, the defendants wrote to the plaintiff, enclosing the account of sales, and saying they had requested their friend in New-York to settle the amount with him; but that in case such an arrangement should not be made, they requested the plaintiff to value upon them for the sum, or give them orders on the subject. On the 11th of June, 1810, the defendants again wrote to the plaintiff, stating that “in conformity to his request” they had been looking out for English government bills, to remit the sum, but had not been able to procure any for so small an amount; and that they could find no bills on the United Slutes; they, therefore, request the plaintiff to draw upon them at sight, and that due honoúr should be paid to his draft; or, if he wished bills of individuals on the English government, they would immediately remit some of approved credit. It appeared that there was a loss on remittances from Martinique to New-York, of 10 or 12 per cent., and that it was very difficult to get funds from Martinique, and that the general practice was for the consignor to direct the mode of remittance.

Paris, one of the defendants, being arrested in New-York, in this suit, offered to pay the plaintiff, if he would deduct 10 per cent., which was refused.

A verdict was taken for the plaintiff, for the whole amount of the net proceeds, with interest, subject to the opinion of the court on a case containing the above facts. It was agreed, that if the court should be of opinion that the plaintiff ivas entitled to recover the whole sum, the verdict was to stand; if for a less sum, judgment was to be entered accordingly; but if the court should

p. 290

be of opinion that the plaintiff could not recover in this action, then a judgment of nonsuit was to be entered.

Anthon, for the plaintiff.

T. L. Ogden, contra.

The plaintiff consigned goods to the defendants# who were merchants residing at Martinique, and the goods were sold by the defendants for, and on account of, the plaintiff, in January, 1809. In April following the defendants wrote to the plaintiff, and remitted to him the account of sales, and authorize him to value qn them for the amount, or give orders upon the subject. The plaintiff, instead of drawing upon them for the balance of the account, requests them to procure English government bills to remit. The defendants, in their letter of June, 1810, say that they have not been able to procure any, and again authorize the plaintiff to draw on them, and his draft shall meet due honour; and they also offer to procure him bills of individuals upon the English government, It was also proved that there was a discount of from 10 to 12 1-2 per cent.; on remittances from Martinique to Nerv-York, and that by the usage of trade the consignee was to receive instructions as to the mode of remittance. Before there had been any default or laches shown, on the part of the defendants, and after repeated offers on their part to pay or remit according to order, the plaintiff commenced his suit. The defendants, in the character of consignees or factors, were bound to pursue the directions of their principal, and after apprizing him of the sale, to wait for those directions. Until a default on their part, they were not liable to an action; and to support the action in the present case would be against the policy and usage of trade, as well as against justice and good faith. If we were so to deal with factors, we should soon put an end to the practice of employing them.

Judgment of nonsuit.