Casson v. Field — 52 N.Y. Super. Ct. 196

Majority

p. 196

SAMUEL CASSON, Respondent, v. AARON FIELD, et al., Appellants.

Headnote

.Factor, as to right to sell.—Requests and exceptions to charge, effect of omissions to malee.

A factor, as to right to sell, has no right to sell for advances until the principal fails to pay after reasonable notice.

Where there is a disputed question of fact, and an omission to request submission of it to the jury, the parties are considered as having left it to the decision of the court, and to have submitted to his decision; and on appeal, his decision must be assumed to be such as will support the verdict.

An omission to take an exception to a charge as to a fact, is an admission, that the fact is as charged.

This was an action of trover against brokers, founded on an alleged sale by them against instructions, and a demand and refusal; the defense was two-fold (1st) that the goods were sold by plaintiff’s order. This was disputed by the plaintiff, and there was no request to submit the disputed question of facts to the jury; (2d) that the goods were sold for the payment of a general balance due for advances. The court charged there was no general balance due, and this was not excepted to. The jury found for the plaintiff. Reid, that the judgment entered on the verdict should be affirmed.

Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

Decided June 1, 1885.

Appeal by defendants from judgment entered on verdict of jury, and from an order denying motion for new trial on the minutes.

Action of trover against brokers for an alleged sale-against instructions. The defense was (1st) that the

p. 197

goods were sold by plaintiff’s order, and (2d) that they were sold for a general balance due for advances.

Further facts appear in the opinion.

Edward S. Field, attorney, and A. Blumenstiel, of counsel for appellants.

David Tim, attorney, and of counsel for respondent.

It is not necessary for us to determine in this case whether the defendants had or had not a general lien for advances to plaintiff on the particular goods that are the subject of controversy in this action. It is well settled that a factor must obey the instructions of his principal as to the sale of the goods consigned to him, although he has made advances, unless the principal, after reasonable notice, fail to pay such advances'(Hilton v. Vanderbilt, 82 N. Y. 591 ; Manfield v. Goodhue, 3 Ib. 62). The evidence shows that plaintiff consigned certain goods to defendants to be sold by them at a certain price, and that the defendants sold them under that price. It is true that one of the defendants, Field, testified that he sold the goods below the price limited, because the plaintiff told him to sell them at auction for what they would bring, but this evidence was contradicted by plaintiff, and the disputed question of fact was not submitted to the jury. ' By not requesting the court to submit this question to the jury, and by not excepting to the charge of the court that there was no general balance due from .plaintiff to defendants, the defendants admitted that there was no general balance due from plaintiff to defendants, and if there was no such balance due them, they could have no lien on the goods mentioned in the complaint. -

Therefore, it was their duty to deliver the goods to plaintiff on demand.

The judgment and order appealed from are affirmed, with costs.

O’Gorhan, J., concurred ; Sedgwick, Oh, J., agreed to affirm.

Cases cited

Hilton v. Vanderbilt 82 N. Y. 591 N.Y. 1880-11-30 p. 197