Edmund Dwight et al. versus Robert Whitney, 15 Pick. 179

Per Curiam. The point in controversy is, which of the parties shall sustain the loss arising from the insolvency of Andrews. The balance claimed was advanced by the plaintiffs on the faith of being reimbursed by the defendant’s funds, and if they are not so reimbursed, it is a loss to them of the same kind as if not having advanced the money, they were called upon by a suit, to pay a sum in damages, for their neglect and breach of duty, to the amount of the actual loss sustained. The case therefore is to be considered upon the same grounds and principles as if this were an action on the case for negligence.

There seems to have been a misapprehension at the trial, in respect to the reservation of this case for the opinion of the full Court. The evidence, as reported, is contradictory in regard to the usage, and it is necessary to send the case back to a jury to settle the facts. We have, however, considered the question, whether evidence of the usage attempted to be proved was admissible ; and we are of opinion that it was. A factor is bound to conform to the instructions of his consignor as to the price of the

article to be sold, the terms, and mode of payment. But in the absence of any instructions, the consignor is presumed by law to be acquainted with and to assent to the course of dealing which is usually practised at the same market by others in the same line of business A factor having no particular instructions, is authorized to sell on credit, and to take a note in his own name from .the purchaser.

The circumstance, that the plaintiffs gave credit for the proceeds of the sale in account, if upon other grounds they are not chargeable for the loss, does not render them liable, if the jury should be warranted by the evidence in believing that it is usual so to give credit as soon as the sale is completed and made up, although the factor do not guarantee the sale.

It seems to be conceded, that during the credit, the sale is at the risk of the consignor, and of course the factor must have a right, in case of a failure of payment, for which he is not responsible, to reform his account, by charging back the amount of the bad debt. Nor does the omission of the factor to give notice to his principal, that the debt has become due and is unpaid, in point of law render the factor liable, if no specific damage can be shown to have arisen from it.

Before the death of Andrews the plaintiffs had no reason to apprehend an insolvency, and after the death nothing could have been done to secure the debt; and even if there had been a subsisting attachment, it would have been dissolved by the death. No step to compel payment could have been taken by the plaintiffs within one year; nor afterwards, except to obtain an equal distribution of the estate.

These circumstances therefore are of no other importance than as they connect themselves in the opinion of the jury, with the general mass of circumstances tending to show whether the plaintiffs conformed to the usual course of busi ness, and whether they conducted the defendant’s business with usual skill and diligence. It is for the jury to settle these questions. In point of law, we are of opinion that the usage attempted to be proved on the part of the plaintiffs is a reasonable one ; and if the consignor did not choose to con form to it, he should have limited his factors by specify.. instructions.

New trial ordered.