Zachariah Jellison et al. versus Edward Lafonta, 19 Pick. 244

Shaw C. J. delivered the opinion of the Court. Two questions have been made in this cause : first, whether the defendant was liable to pay the balance in Boston ; and secondly, whether the action can be maintained by the four plaintiffs jointly. In regard to the first question, the nature and terms of the contract by which Dimmick St Lafonta became interested with the owners of the brig Ellsworth, in the cargo of coffee from Rio, does not distinctly appear.

In general, a factor or com mission merchant is not liable to an action for money had and received from sales of goods consigned, until he has failed to remit the proceeds, according to the orders of his employer, or the usage of trade, or has been chargeable with some other neglect, default or breach of duty. How far this rule would apply upon the settlement of a joint account, where one of the partners has acted for himself and those interested with him in the adventure, would depend much upon the nature of the arrangement.

If it depended wholly upon this point, we should think it necessary to have a more precise statement of the facts. But there is another point, which we think decisive.

The defendant having made sales of the cargo, for the joint account of himself and his partners in the adventure, at New Orleans, and having remitted the greater part of the proceeds, comes to Boston, and then settles his accounts, which result in a balance against him, being a loss on the adventure- If he had any privilege arising from his character as a factor, to pay only at New Orleans, we think he waived it by his unconditional promise to pay the balance here.

The defendant asked how the plaintiffs would have the balance paid, which was then due, and offered a bill on New Orleans, which they declined, and required cash, or a draft at short sight on a house in Boston. The defendant then said he was about negotiating some exchange on New Orleans, and would make the amount large enough.to cover this balance, and would pay it.

It was an ab solute promise to pay here ; and his mode of speaking of negotiating exchange on New Orleans was only indicating the means by which he expected to raise the funds, and was equivalent to a request of the plaintiffs to wait a few days, or an assurance that they should have it in a few days. 'This being a waiver of his privilege to pay only at New Orleans, if he ever had it, his subsequent letter offering to pay at New Orleans did not bar the plaintiffs’ right of action against him.

On the other point it appears that the owners of the brig, consisting of the four plaintiffs, were jointly interested in this adventure with the defendant and had a joint right of action upon the settlement made by Jellison in their behalf and as their agent. The account is stated as with the owners; arid the balance is due to them. Judgment for the plaintiffs.