author: Cady, J.

text:
    Marfield vs. Goodhue and others.
    Where goods are sent to a factor for sale without instructions as to the time or terms of sale, he is at liberty to sell at such time and on such terms as in the exercise of a sound discretion he shall deem proper for the interest of his principal. Per Cady, J.
    But the factor is bound to obey the subsequent instructions of his principal as to the sale, although after the receipt of the goods he has made advances thereon, unless the principal, after reasonable notice, fail to repay such advances.
    Whether special circumstances, such as the insolvency of the principal or the impracticability of giving him reasonable notice to repay advances, will not jus■tify the factor in selling contrary to his instructions, quere.

    The plaintiff, residing in Ohio, consigned to the defendants, who were commission merchants and factors in New-York, a large quantity of pork for sale. The defendants on the receipt of the property paid the freight and charges, and subsequently they made advances thereon to the plaintiff. The plaintiff, after the advances were made, in anticipation of a rise in the market, gave the defendants instructions not to sell. Held, that the defendants were bound by the instructions, and had no right to sell the pork without calling on the principal to repay the advances, or giving him notice of their intention to sell.
    A promise by a factor who has made advances on the goods not to sell without instructions, it seems, is upheld by a sufficient consideration.
    Appeal from the superior court of the city of New-York, where the action was case brought by Marfield against Good-hue and others for selling a quantity of pork contrary to the instructions of the plaintiff. On the trial before Oakley, Oh, Í. in October, 1847, it appeared that during the years 1846 and L847, the defendants were commission merchants and factors in the city of New~York, and that previous to December, 1846, the plaintiff, who resided at Chillicothe, Ohio, had from time to time consigned to them a large quantity of pork. The consignments were made without any specific instructions or limitations as to the time or terms of sale, and without any express agreement that the defendants were to make advances upon the "property. On the receipt of the consignments the defendants paid the freight, and subsequently the charges for inspection, insurance, &c. They also, after the receipt of the property, made advances upon it to the plaintiff at his request.
    On the 27th of November, 1846, the plaintiff wrote to the defendants saying, among other things, as follows: “ As to the pork which you hold do as you think best, although I think better prices will be obtained after a while.” On the 14th of December, 1846, he wrote again to the defendants, and in that letter, after stating his reasons for believing that prices would soon rise, he added, “with all these facts before me I have thought best to hok^mylo my pork, and I wish you to take it out of the market for the present, as I am confident that the article, if other points are short in proportion as we are, must improve much indeed.” The defendants on the 21st of December, 1846, replied, acknowledging the receipt of the letter-last mentioned, and stating, among other things, as follows: “ It has been our intention, whenever the market discovered firmness enough to warrant our doing it, to reduce the heavy stock we hold by gradual sales, and to have sold a part of yours with other parcels. We still prefer this course, as we have held so long, but it is not probable we shall have made much progress until we can hear from you again.” But, on the 28th of that month, before the defendants could have received a reply to their letter of the 21st, they sold 427 barrels of the plaintiff’s pork. On the 26th of December, the plaintiff replied to the defendants’ letter of the 21st, and in that reply, among other things, said: “ I would rather you would hold on to my pork, as I have held so long. I would rather pay a little more interest, as the appearance of things looks very fair for a considerable improvement.” The receipt of that letter was acknowledged by the defendants on the 2d of January, 1847. On that day, the defendants sold 600 barrels of the plaintiff’s pork, and on the 6th of that month they sold 300 barrels. On the 3d of Jan. 1847, the plaintiff wrote again to the defendants, saying, “ I wish you to hold on to every barrel of my pork, as it may yet bring a price which would not result in so large a loss.” On the 9th of January, 1847, the plaintiff' having received advice of the two first mentioned sales, wrote, complaining in decided terms of the violation of his orders. On the same day the defendants addressed to the plaintiff a letter acknowledging his letter of the 3d of that month, and stating as follows: “ In compliance with your request, we will hold what remains of your pork for the present; but we think it quite probable, that when you hear the state of the market here, you will conclude to avail yourself of the active demand, and continue selling gradually.” Within six days afterwards, they sold 59 barrels more of the plaintiff’s pork. Up to this time the defendants had not given the plaintiff any intimation that thexclaimed the right to sell his pork contrary to his wishes, or that they would sell unless he repaid their advances. But, in a letter of the 15th of January, 1847, they claimed a right to sell at their discretion. It was admitted that the pork was worth, on the 12th of Feb. 1847, $12¿- per barrel, and that the difference between that and the prices at which the defendants had made the sales amounted on all the pork sold to $5737,68, including interest to the time of trial; and that sum the plaintiff claimed to recover.
    The chief justice charged the jury, among other things, “that the defendants were at liberty, in the exercise of a sound discretion, to sell so much of the pork as was necessary to pay their advances, and to reimburse themselves for such advances out of the proceeds of the sale, without demanding or asking repayment of them by the plaintiff, and without notifying him of their intention to sell; that the plaintiff, after receiving such advances, had no right, by subsequent instructions, to control this right of sale, except as to the surplus not necessary for the defendants’ reimbursement; and that if the jury should find that the defendants had not sold enough to pay their advances, and that the sales were made in good faith, and in the exercise of a sound discretion, the defendants were entitled to a verdict.” The plaintiff excepted to so much of the charge as related to the right to sell to repay advances without demand or notice to the plaintiff, and to the want of authority on his part to control the sale after the advances had been made ; and he requested the chief justice to charge the jury, that if they believed from the evidence, that the defendants did not sell to repay themselves their advances, but in discharge of what they supposed to be the general discretion delegated to them; or if they believed from the evidence that the defendants did not put their right to sell on that ground in their correspondence with the plaintiff, then they were estopped from taking that ground now; which charge the chief justice declined to give, and the plaintiff’s counsel excepted. The counsel for the plaintiff also requested the chief justice to charge the jury, that if they believed from the evidence, that the defendants had sold any pork after the 9th day of January, 1847, when they wrote to him, “In compliance with your request we will hold on to what remains of your pork for the present,” efcc. the plaintiff was entitled to recover in respect of the pork so sold; which charge the chief justice refused to give, on the ground that there did not appear to be any consideration for the agreement not to sell, nor that the plaintiff was misled by it or prevented from tendering to the defendants the residue of their advances. The plaintiff’s counsel excepted. The defendants had a verdict, which the superior court refused to set aside. [See 1 Sandf. Sup. Court Rep. 360.) After judgment the plaintiff appealed to this court.

      W. C. Noyes & G. Wood, for appellant.
    I. The general principle is, that the factor is bound to obey the instructions of his principal, which may be varied from time to time. And the expression of a wish or desire, in such case, amounts to instruction. (Bell v. Palmer, 6 Cowen, 128; Story on Agency, § 391.) In this case the respondent received instructions to withdraw the property from the market, which he disobeyed.
    II. The general rule also is, that advances by the factor do not deprive the principal of his power to vary the time of sale by new instructions, unless the factor give reasonable notice to the principal to repay such advances, and the principal fail to repay. (22 Pick. 40 ; 12 N. Hamp. R. 239; 16 Martin’s Lou. R. 470, 4 ; 6 M. & W. 670; Story on Agency, § 371, 75 ; 1 Bell’s Comm. 275, 483 ; 2 id. 114, 115, 116; Smart v. Saunders, 12 Lond. Jur. 751.)
    III. This is a reasonable rule, because the factor is bound to consult the interest of his employer, who ought therefore, to exercise the discretion in regard to his own interest. (Evans v. Potter, 2 Gal. 13.) When the factor sells to repay his advances, he is consulting his own interest, which may come in conflict with the interest of his principal, of which, therefore., the latter should. have notice, that by repaying he may take the control of his own interest. This rule is in conformity with the principle in analogous cases. The claim for advances is not due till notice to repay. (1 Taunt. R. 572; 2 Bos. & Pul. 667 ; 4 Wend. 534, 679; 6 Cowen, 181; 11 Pick. 482; 1 Gal. 360; 11 Metc. 174; 7 Hill, 497.) If he sell for the benefit of his employer, he should let the employer’s instructions control. If he sell for his own benefit, viz. to repay advances, he should first notify his employer, and give him an opportunity to .repay him. In all cases of liens on personal property, for a debt, whether it be a lien in the course of trade, a lien raised by equity, a pledge, or a mortgage, and of course accompanied with legal ownership, the creditor cannot sell the property without first giving reasonable notice to the debtor, so that the debtor may watch over his own interest, in a case where the interest of the party selling may come in conflict with his interest. (4 Kent’s Com. 139, 140; Tucker v. Wilson, 1 P. Wms. 261; 1 Brown’s P. C. 494, S. C.; 2 Atkins, 303; 2 John. Ca. 100: Cowp. 251, 256.) Therefore, the court erred in supposing, because the interest of the factor advancing, was in the nature of a mortgage, or special ownership, notice might be dispensed with.
    IY. The exceptions to the above general rule are, 1st. Where the principal is so distant as to render the giving a reasonable notice to him impracticable. Great distance will excuse a departure from instructions, upon events not foreseen. (4 Binney, 361.) 2d. Where advances are made at the commencement of, and form part of, the original contract of factorage. The doctrine, in Brown v. McGran, (14 Pet. 495,) was not designed to overturn the general rule, that the factor, in advance, must notify the debtor, before he can sell to repay himself, against the instructions for the time being, of his principal, but was intended to be confined to the case of advances made under the original contract of factorage. It was so understood by Justice Story, who delivered the opinion. (Story on Agency, §§ 74, 371.) The court below erred in supposing there was no difference in this respect between advances made at the time of the engagement as factor, and advances subsequent thereto. It may reasonably be supposed, that in the former case, the engagement to accept and act as factor, upon the terms then prescribed, is the consideration upon which the advance is made; and therefore, a subsequent variance of the instructions would work an alteration of the agreement, forming the consideration of the advance. In the case of a subsequent advance, the original agreement, being a past transaction, is no part of the consideration thereof. (6 Mee. & W. 670.) In such case, there is no obligation to advance, as there is when the advance forms part of the original contract, and therefore no reciprocal obligation arises, to make the terms of sale, existing at the time of the. subsequent advance, unalterable by the consignor.
    V. If it be true, as the superior court supposed, that there was no just ground for distinguishing the case of Brown and McGran, from the general rule above stated, and making it an exception thereto, then the exception, and not the general rule, should give way.
    VI. The court (assuming their view of the case of Brown and McGran to be correct) erred in supposing that a promise by the consignee to: the consignor, to hold on to the property, was void for want of consideration. 1st. The effect of such a promise was, to put the consignee off his guard, so as not to take measures to repay the advances and resume his discretion over the sale of his property. 2d. It was a waiver of his right to sell against instructions, and an acquiescence in them. Such a waiver, requires no consideration, any more than a waiver of a right to receive specie instead of paper, or of the time of performance, of a contract. (1 Saund. 320, 329.)

      F. B. Cutting & D. Lord, for respondents.
    I. The property in question having been consigned to the defendants for sale, and the defendants having made advances on it to nearly the value of the.property, without any limitation as to the time or terms of sale, they acquired a special property therein, and had a right to sell at their discretion honestly exercised with a view to the best interest of the consignor, at least so much of the consignment as would reimburse their advances;. (2 Kent's Com. 642; Story on Agency, § 372, 374, n. 2d ed.; Brown v. McGran, 14 Pet. 479; Pothonier v. Dawson, Holt's N. P. R. 343.)
    The right of a commission merchant to sell for a reimbursement of his advances is not at all derived from the common law doctrine of a pledge, nor is he restricted to a naked! lien on the property. (1.) In the case of a pledge or mortgage, the repayment of the loan by the borrower is the primary intention of the parties—a sale of the property is contemplated only in case default is made in the stipulated payment. But on a consignment to a commission merchant, the sale of the property is the primary object. In the absence of instructions to the contrary, it is not merely the right but the duty of the consignee to sell at once. (Evans v. Potter, 2 Gall. 13.) (2.) If the consignor desires to anticipate the proceeds of the goods by obtaining an advance on them, the very terms imply that the property is to be sold to provide such repayment. It is not, as the plaintiff contends, a loan payable on demand; the consignor’s individual liability does not arise till recourse has been had to the property. (Corlies v. Cumming, 6 Cowen, 184.) (3.) The right of selling is. manifestly an important part of the security on which he relies for reimbursement, and this right can not be subsequently controlled or postponed by the consignor, against the will of the consignee, without destroying or impairing the security on which the advance was made. (2 Kent's Com. 644; Story on Agency, § 477; Walsh v. Whitcomb, 2 Esp. N. P. 565; Hunt v. Rousmanier, 8 Wheat. 174; Gaussen v. Morton, 10 B. & C. 731.)
    III. No distinction can be drawn as to the rights of the parties, whether the advance is made at the time of the consignment, or after the goods are in the hands of the consignee; provided, when made, there are no instructions or agreement to hold the property subject to the control of the consignor. The object of the consignor in obtaining the advance is precisely the same in both cases, viz. to realize the value of the property before an opportunity for a sale occurs. The necessity of the consignee to reimburse himself from the sales of the property is the same in one case as in the other. In both cases it is equally a voluntary act of the consignee to make the advance; and equally in the power of the consignor when applying for it, to stipulate for time if he desires it. If any argument be draWn from the factor being placed in a position hostile to his principal, it applies with equal force, whether the advance is cotemporaneous with the consignment, or subsequent; or even where a limitation is agreed upon, after the expiration of such time. In both cases it is equally in the power of the consignor to reinstate himself in the absolute control of his property by refunding the amount advanced.
    IV. All the cases relied on by the plaintiff are where the advance was made after instructions were given, or cotemporaneously ; (Bell v. Palmer, 6 Cowen, 128 ; Lafarge v. Kneeland, 7 id. 456; Blot v. Boiceau, Sandf. S. C. R. 111; Smart v. Sanders, 10 Lond. Jur. Oct. 1846; S. C. 3 Man. G. & S. 380;) or else they are cases of naked liens, as Dykers v. Allen, (7 Hill, 497;) Story on Bail. § 308 ; Bryce v. Brooks, (26 Wend, 367;) Zoit v. Millaudon, (16 Mart. Lou. R. 470, &c.)

      V. After the notice of the defendants in their letter of December 21st, that they should proceed to sell, it was incumbent on the plaintiff, if he wished to prevent the sale, to offer to reimburse the advances. The obligation of tendering the amount due was on the plaintiff, and the defendants were under no obligation to demand payment.
    VI. In selling the 49 barrels of mess pork on the 12th of January, after the defendants had consented in their letter of the 9th to hold the remainder, they were influenced by a rise of $1 per barrel, which had taken place. But the letter of the 9th of January had not yet reached the plaintiff; nor was he in any way misled by it, or prevented tendering the balance due ; and if the letter was regarded in the light of a promise, it was void for want of a consideration.
   Cady, J.

Two questions are to be determined : 1st. Did the chief justice commit any error in the charge given to the jury? 2d. Ought he to have given to the jury all or any of the instructions which he was requested to give by the plaintiff’s counsel?

To determine whether the charge was such as the law required, the facts in the case must all be taken into consideration. These parties lived so near to each other, that letters could pass from one to the other in five or six days4_mrd they could, without any inconvenient delay, consult each other and inform each other of their intentions, views and wishes. If the defendants had belieyed it necessary that they should sell the plaintiff’s pork to secure the repayment of their advances, it would have been a very easy matter for them to have informed the plaintiff, that unless their advances were repaid, they should sell his pork to reimburse themselves. In two weeks from the time they had •mailed such notice in New-Y ork: the plaintiff might have been in that city and paid them, or sent them a draft on a responsible house or bank. But the law as given in charge to the jury would apply to all cases indiscriminately, whether the parties lived in the same house in the same city, or on opposite sides of the globe. According to the charge, the fact that the plain tiff had directed the defendants not to sell the pork, was wholly immaterial, because the defendants had a perfect right to disregard the directions. The jury were in effect told, that if a consignor has received any advances upon goods consigned, the factor has a perfect right to disregard any directions which the consignor may give in relation to the goods, and may rightfully sell without giving notice to his principal, or asking for a repayment of his advances, although he may give such notice without an hour’s delay, and has good reason to believe that the consignor would repay the advances on an hour’s notice. Can the interests of commerce require, that a factor should have such an unrestrained power over the goods of his principal'? The charge given by the chief justice was reviewed and affirmed by the superior court, and that court were of opinion that the charge was fully warranted by the judgment of the supreme court of the United States in the case of Brown & Co. v. McGran, (14 Peters, 479.) The decisions of that court are entitled to great consideration; and in all cases which can be reviewed in that court, its judgments must be regarded as binding on all other judicial tribunals in our country; but in other cases the opinions of that court are entitled to the same respect, and no other, that is due to the opinions of any other court composed of judges of equal learning and ability.

There were facts in the case of Brown & Co. v. McGran, not to be found in this, which probably had an influence on the decision. The parties in that case lived in different countries, and they could not, in 1833, when the cause of action arose, have corresponded with each other in less, than about seven or eight weeks. The consignor had become insolvent, and notice to him of an intended sale would have been useless. The factor could not delay a sale without taking on himself all the hazard of a fall in the market. It was insisted that the wish expressed by McGran to his factor, was not to be regarded as an order. In this case the superior court when speaking of the letters of the plaintiff to the defendants, say: “ They contain a plain direction to withdraw the plaintiff’s pork from the market;” and the parties lived so near each other, that letters passed from one to the other in five or six days. There is no pretence that the plaintiff was insolvent and could not, if he had received notice of the defendants’ intention to sell, have repaid their advances by the return mail. The defendants, therefore, could have incurred no hazard by ten or twelve days’ delay,. The facts in the two cases are so dissimilar, that in one the defendants might be entitled to judgment; while in the other the plaintiff would be, unless it be law in all cases between principal and factor, that if the factor has made any advances he can sell at his discretion, without notice to his principal, and without any demand of repayment, although the principal has ordered the factor not to sell. I have found no case other than that of Brown & Co. v. McGran in which the principle has been thus broadly stated and acted upon, nor do I believe that the rule adopted in that case ought to be regarded of such high authority as to be applied in all cases. The two cases to which Justice Story refers in support of the main point decided, are Pothonier v. Dawson, (1 Holts R. 383,) and Graham v. Dyster, (6 M. & Sel. 1, 4, 5.) The former was a case of a pledge, and the question whether a pledgee was bound to give notice of a sale was not raised. The question was whether a pledgee could sell at all; not whether he was bound to give notice before he sold. The question in the latter case was whether a factor could pledge the goods of his principal; not whether he could sell them without notice, contrary to the orders of his principal.

Where goods are sent to a factor for sale, without any limitation or instructions as to the terms or time of sale, he is at liberty to sell as in the exercise of a sound discretion he shall deem proper for the interest of his principal. The factor in such a case is intrusted with the exercise of a discretion for the benefit of his principal and not for his own advantage, and that discretion the principal has a right to control. But after the factor has this authority, to be exercised exclusively for the benefit of his principal, he makes advances, and then his principal becomes satisfied that his interest will be promoted if the sale be delayed and he orders his factor not to sell. The chief justice instruct ed the jury that such an order was powerless, and in no respect Limited the authority of the factor. Can this be so? The authority when given to the factor was given for the exclusive benefit of the principal. The interest of the factor was not to be regarded at all in the exercise of the authority. Then the factor makes an advance upon the credit of the goods, and of his principal ; is he not, after that, as much bound as he was before, to have solely in view the interest of his principal when he sells, or is he at liberty, afterwards, to consult his own interest instead of that of this principal? After the advance, the principal has good reason to believe that a delay in selling wfll be advantageous to him, and he so informs his factor; is there any hardship in requiring of the factor, if he is unwilEng to obey the order of his principal, to say to him—“ as you have revoked my authority to sell at my discretion for your benefit, I shall seE at my discretion for my own benefit, unless you forthwith repay my advances.”

When the principal has revoked the authority so far as it was to be exercised for him, he by no means impairs the power to sell which the factor has as a pledgee. A pledgee may seE on giving reasonable notice. (4 Kent’s Com. 139,140.) If I employ a man to purchase goods for me, he is my factor; but if I revoke his authority, he ceases to be my factor. So, if being employed to seE goods for- me, I order him not to seE, he ceases to be my factor; but if he has made advances upon the goods which I direct him to sell, he has the right of a pledgee to sell on giving me-reasonable notice, and he is under no obligation after that to consult me as to the time and manner of sale. All he need do, is to act in good faith.

In the case of Parker v. Brunker, (22 Pick. 40,) the consignor had directed his goods not to be sold under a certain price. The factor made advances upon them, but could not sell the goods at the price limited, and therefore he could not sell without disobeying the orders of his principal; and the court held that he had a right to sell, against the orders of his principal, to repay his advances after the consignor had refused upon application and after a reasonable time to repay advances. Ii may be said that in that case, the factor accepted the consignment knowing of the limitation as to the price at which the goods should be sold. How far that circumstance might have been urged as evidence of an implied agreement on his part, not to ask for a repayment of his advances until the goods could be sold for the price limited, it is not necessary now to inquire. In this case, the defendants made no advances when they received the pork except to pay the charges thereon. The implied contract on their part, was, that they would obey the plaintiff’s directions as to the time and terms of sale of the pork. Such, too, was the implied contract on the part of the factor, in the case of Parker v. Brunker ; and it appears to me, that it is most reasonable that when a factor wishes to sell for his own benefit, and in violation of the orders of his principal, he should give notice of his intention to do so, unless his advances were repaid. There may be cases in which the factor might not be bound to give such notice; but this is not such a case.

In the case of Bell v. Palmer, (6 Cowen, 128,) it was held that a factor, making advances on the goods of his principal even beyond their value, is bound to obey the instructions of the latter, as to the time of sale, and if being instructed to sell immediately, he refuse the first offer, in the expectation of a more favorable market, and afterwards sell at less than the first offer, he is liable, although he acted in perfect good faith. In that case the offer refused was not equal to the advances and expenses. Chief Justice Savage, in delivering the opinion of the court says: “ It is the duty of the factor to manage the affairs of his principal in the same manner and with that care and diligence which a prudent and discreet merchant would exercise in relation to his own affairs, but he still must obey his instructions, because it is the principal who bears the loss.” He also says, “ the plaintiffs having advanced money on the goods gave them a lien for the amount of their advance; but I do not find any authority for saying that the lien thus created alters the rights of the parties in any respect, so far as relates to the duty of the factor in making sale of the goods. Nor is there any reason why it should. The principals are liable for the money advanced; and the goods being at their risk are subject to their order and control in every respect not inconsistent with the lien of the factor.”

In the case cited, the factor was held liable for not selling as soon as he was directed to sell. In the case before the court, it is sought to make the defendants liable because they sold when they were ordered not to sell. In both cases, the factor disregarded the orders of his principal, and the principal thereby sustained a great loss. As a general rule the principal has a right to revoke the authority which the law implies from the fact that the goods were delivered to the factor for sale; but that revocation will leave untouched the authority to sell which the factor, if he has made advances, has to sell as pledgee; and the plaintiff in this case, although he had received advances, had a right by subsequent instructions so far to control the sale that the defendants could not legally sell without giving notice to the plaintiff of their intentions; and in this respect, I think the jury were misdirected. Whenever a person’s property is to he sold against his wishes, justice demands that he should have notice why it is to be sold, especially when such notice can conviently be given. If the defendants could have shown, that by delaying the sale, they would have been exposed to a loss, they might probably have excused their disobedience to the orders of their principal. They were not only instructed by him to take his pork out of the market, but promised to do so. And do the interests of commerce require, that factors and commission merchants should be allowed to make promises and violate them, without incurring any responsibility, although their principals may suffer great loss thereby ? What is the excuse made by the defendants, for not performing their promise? It is said that it was a promise without consideration; and the superior court held that that was a sufficient and legal excuse. That same excuse was urged in the case of Brown & Co. v. McGran; but Justice Story, in giving the opinion of the court, took no notice of it; he neither sanctioned nor rejected it. A consideration from which the law will imply a promise, must he sufficient to uphold an express promise. What promise did the law imply when the plaintiff delivered his pork to the defendants 1 The law implied a promise on the part of the plaintiff, that the defendants should be paid a reasonable compensation for the care they should bestow in relation to the pork; and the defendants’ account shows that they were to have interest on their advances and two and a half per cent on the amount of then-sales ; and the law implied a promise on their part, that they would take care of the plaintiff’s pork, and in the absence of any instructions from him, as to the time and terms of the sale, they would seek his interest exclusively in the sale thereof, and would obey such instructions as he should give. It is not questioned, but there was a sufficient consideration to uphold this agreement between the parties, whether it be regarded as an implied or express agreement. The law however, does not imply an agreement without a consideration. After the pork was delivered to the defendants, and the parties had made an agreement as above stated, the defendants made large advances for and on account of the plaintiff, and after sutih advances, the plaintiff directed the defendants to take his pork out of the market, or in other words, directed them not to sell it;' and they promised to obey that order; but they immediately sold it in violation of that promise; and the chief justice, on the trial, and the superior court on reviewing his opinion, held, that the promise required a new consideration, and was void, because no such consideration was shown. But it is certainly very important to ascertain whether it was a promise which required a new consideration. It was a mere reiteration of the implied or express promise which the defendants made when they received the pork, that they would obey the plaintiff’s instructions as to the sale of it; and the original consideration would uphold the second as well as the first promise, unless the evidence in the cause was such as clearly proved that the defendants had been discharged from the performance of their first promise.. What better evidence could be given, that nothing which had been done between the parties, had, in their opinion, discharged the defendants from their promise to obey the plaintiff’s instructions, than that the plaintiff gave instructions, and the defendants promised to obey? When the plaintiff gave directions to the defendants to take their pork out of the market, the defendants must have understood him as claiming the right to give such instructions, and by promising to obey, they admitted such right; they admitted that nothing had occurred between them which had weakened their original promise to obey his instructions. Suppose the defendants, when the plaintiff instructed them not to sell, had answered, “ you have a right to give instructions,” would it have been any better evidence of such right than their promise to obey ?

When the plaintiff directed the defendants to take his pork out of the market, if they did not intend to, admit his right to give and their obligation to obey, what did good faith require of them? They ought promptly to have put him on his guard, by replying to his order, that he, by accepting advances, had discharged them from all obligations to obey his instructions, and that they claimed and intended to exert the right to sell when-they fleased unless their advances were repaid. Why did the defendants withhold this reply, and instead of it promise to obey the order? Will the law allow the defendants to answer that inquiry by saying, we gave the promise in order to mislead the plaintiff; we wanted to secure to ourselves a commission of two and a' half per cent on the sale of the pork, and we anticipated, that if we informed him that we would not obey his instructions and would sell at our pleasure, unless our advances were repaid, he would have repaid our advances, taken his pork out of our hands, and we would not in that case have received a commission on the amount of sales ?” If the defendants made the promise to take the pork out of market with a view to secure a commission of two and a half per cent on the amount of the sales, that might be regarded as a sufficient consideration for the promise, if any new consideration was necessary. It can hardly be necessary to say that the jury ought, in my opinion, to have been instructed that the defendants were at al] events liable for the damages which the plaintiff sustained by the defendants’ sale of the pork, after their agreement to hold on to it for the present.” For this reason as well as the misdirection before noticed, the judgment of the superior court ought to be reversed, and a new trial ought to be granted.

Ordered accordingly.

         See Wilson v. Little, (ante, vol.2, p. 443.)


source: Caselaw Access Project

author: Ruggles, J. Bronson, J.

license: Public Domain

text:
    Blot vs. Boiceau and Rusch,
    Where goods are consigned to a factor for sale with specific instructions as ¿he price, he has no right to sell below the price named to cover his advances without calling on his principal for repayment.
    But where the factor sells below the price named in the instructions, the measure of damages in an action brought by the principal on account of the. wrongful sale, is only the amount of injury actually sustained.
    It is therefore competent for the factor in such a case to show, in reduction of the damages, that the goods, at the time of the sale, and down to the time of trial, were worth no more than the price at which they were sold.
    If the factor sells below his instructions, although at the then market value, he takes the peril of a rise in the value of the goods at any time before the action js brought, and perhaps down to the time of trial. Per Bronson, J.
    Where the consignment is of articles which have np market value, such as antique paintings, statues, or vases, it seems the principal may insist upon the prices named in the instructions, without regard to the market.
    Appeal from the superior court of the city of New-York, where the action was assumpsit, brought by Blot against Boiceau and Rusch, tried before Oakley, Ch, J. of that court, in October, 1847.
    The plaintiff, a manufacturer at Amiens in France, in June and July, 1844, consigned to the defendants, who were commission merchants in New-York, goods for sale, invoiced, in the aggregate, at 10,908,82 francs. The consignments were accompanied with instructions not to sell at less than the invoice prices, adding thereto freight, commissions, and other expenses. In August and September, after receiving the goods, but before any sale, the defendants remitted to the plaintiff, as an advance on the goods, the sum of 4900 francs.- In September and October, 1844, the defendants sold the goods for considerable less than the invoices, and the sales were made without calling upon the plaintiff to repay the advances. On proving these facts the plaintiff rested, claiming to recover the difference between the prices named in the instructions and the actual sales,
    (The defendants then proved that the season for selling goods of the kind in question closed in October; that the goods were fairly and publicly sold at auction after due advertisement, and brought the full auction prices. ¡(They also offered to prove that, upon the receipt of the goods, and until they were sold, the defendants made diligent effort to sell them at private sale for the prices specified in the invoices, but could not dispose of them in that way; also that the goods were of inferior quality, and not worth in the season of 1844, or afterwards, any more than the prices actually obtained; also that goods of that description were calculáted to become unfashionable and unsaleable if kept over to another season; also that they were sold in parcels at different places, wherever it appeared they would produce the best prices. The evidence so offered was excluded, and the defendants excepted.
    The jury, under the direction of the court, found a verdict for $1200, subject to the opinion of the court on a case to be made, and subject to adjustment as to the amount of damages. The superior court, on argument of the case, directed judgment in the plaintiff’s favor for the invoice price of the goods, adding freight, duties, charges and commissions, deducting the amount advanced by the defendants. (See 1 Sandf. Superior Court-Rep. Ill, where the case is stated with fuller details.) The defendants appealed to this court.

      J. W. Gerard, for the appellants.
    I. The court erred in excluding the testimony offered on the part of the defendants. It was competent for the defendants to prove, either in bar of the action or in mitigation of damages, (1.) The efforts made by them to comply with the wishes of the consignor, and that it was impossible to do so. (2.) That the goods were never worth more than they actually sold for. The offer was broad enough to embrace their value, either in this country or in France, or in any part of the world. (3.) That they were goods which would become unfashionable and unsaleable, if kept over to a subsequent season. This would have had a material bearing in enabling the jury to determine the relative importance to be attached to the two conflicting heads of instructions, namely: as to prices and time of sale. It would also have excused the defendants from writing to demand payment of their advances before selling, as the value of the goods would have been lost by the delay of doing so. (4.) That the goods were fairly sold, and to thebest advantage.
    II. If the plaintiff was entitled to recover at all, he could only recover the actual damages sustained by the alledged breach of his instructions; and if the goods in question were never, after the defendants received them, worth more than the prices obtained for them, he could recover nominal damages only. If the plaintiff can repudiate the sale as having been made for Ms account, the defendants are liable as for a conversion of the goods, and perhaps for their highest value from the time of sale to that of trial, but for nothing more. (Shannon v. Comstock, 21 Wend. 457; Kennedy v. Shang, 14 John. 128; Crellebank v. Jerome, 7 Cowen, 294.)
    III. A consignee who has made advances on the goods consigned, is authorized to sell the goods in the ordinary course of business to reimburse his advances, even contrary to the orders of the consignor, unless he had expressly agreed not to do so. And it appearing on the face of the correspondence put in evidence by the plaintiff himself, that the defendants in this case had made large advances on the goods, relying on the plaintiff’s statements of their description, quality and value, before seeing them; and that the event' proved the plaintiff’s statements to be false and exaggerated, there is no such express or implied agreement in this case, and the rule does not apply. (Brown v. McGran, 14 Peters’ Rep. 479.)

      H. Nicoll, for respondent.
    I. The delivery to the defendants of the merchandise consigned to them by the plaintiff, was accompaniéd with specific instructions, as to the sale of the same, which were imperative upon the defendants. Nor did the subsequent advances made by them upon said merchandise give them, until demand made for the reimbursement of such advances, any right whatever to sell said merchandise, for prices less than those limited in the instructions. (Bell v. Palmer, 6 Cowen, 128; La Farge v. Kneeland, 7 id. 456; Pothonier v. Dawson, Holt’s N. P. R. 383; Parker v. Brancher, 22 Pick. 40; Brown v. McGran, 14 Peters, 578; Paley on Agency, by Dunlap, p. 31, notes and cases cited.)

    II. In construing said instructions, and in ascertaining how they were understood by the respective parties, recourse must be had to the entire correspondence between them, as set out in the bill of exceptions. (Ely v. Adams, 19 John. 313; Murray v. Bethune, 1 Wend. 191; Choate v. Burnham, 7 Pick. 274; New Eng. Ins. Co. v. De Wolf, 8 id. 56; Cambridge v. Lexington, 17 id. 22; Clarke v. Munger, 22 id. 410; Stone v. Clarke, 1 Metcalf, 378.) From such correspondence the following deductions are palpably to be drawn. (1.) That the defendants were not authorized, by the said instructions, to sell the said merchandise under the invoice price, adding duties, commissions and charges, and that they themselves understood such to be the import of said instructions. (2.) That the defendants never pretended that the instructions were ambiguous or uncertain, or that they were misled by them. (3.) In answer to the defendant’s remonstrances for selling the goods at so ruinous a sacrifice, they justify their acts on a ground entirely untenable, to wit, their right to reimburse themselves for their advances, without a previous demand therefor. (4.) That the defendants never made any demand for a reimbursement of their advances, and that the defendant, had such demand been made, stood ready to comply with it at once.
    III. The rule of damages, in this case, must be the difference between the invoice prices and charges, and the net proceeds of sale as rendered by defendants, deducting one-half commissions, and freight back to France, with commission on drawback; and on this principle the damages were assessed by the jury in the court below. (Allen v. Suydam, 20 Wend. 321; Guy v. Oakley, 13 John. 333; Stevens v. Low, 2 Hill, 132.) The value of the merchandise in the New-York market at the time, could not be the rule of damages. The necessary effect of such a rule, would be to render it useless in any case to limit a factor in the sale of merchandise consigned to him.
   Ruggles, J.

The letters from the plaintiff to the defendants, containing invoices of the goods in controversy and instructions in relation to their sale, were received before the defendants made any advances of money on tire goods. The goods must therefore be considered as received and held by the consignees subject to such instructions. (Brown v. McGran, 14 Wheat. 495.) The goods had not then arrived, and the advances were made upon the invoice prices, before the quality and value of the goods had been ascertained by the consignees; and it turned out that the sums advanced were greater than the actual value of the goods in the New-York market, but there is no ground for supposing that the goods were fraudulently over-valued for the purpose of procuring the advance. The advance, although it may have been expected, was not demanded by the consignor, nor its amount suggested. The consignor was probably mistaken with respect to the value of the goods in this country. The consignees being therefore bound by the instructions, it becomes necessary to ascertain what they were.

In the letter containing the first invoice of three cases of goods, the plaintiff Blot wrote to the defendants, “ we mean to get back at least the principal sum. If you can obtain a profit on these prices it will give me much pleasure. Be careful to make the merchandize bear all the expenses incurred by them, as well for freight as for duties. I desire that all I send you should be sold this season.” This letter was received on the 18th of July, 1844. The goods, which came by the ship St. Nicholas, had not yet arrived.

On the 2d of August, and before the arrival of that ship, the defendants received a second letter containing an invoice of three additional cases of goods. amounting to 5491,42 francs. In that letter the plaintiff says, “ you will please credit me with that amount in account, and sell at least at the prices invoiced, adding thereto the expenses, duties and commissions, For greater clearness, I mean to get back on this account the same as in the value of my first consignment, which I now confirm. It is also my wish that you should dispose of all these goods this season. I do not like to have goods lying over from one season to another.”

The first letter does not contain an explicit order not to sell the goods for less than the invoice prices and expenses. The plaintiff says only, “ we mean to get back at least the principal sum,” desiring in the same letter that the goods should be sold that season. From this letter the consignee might" well have supposed the plaintiff’s intention was to have the goods sold for the specified price, if they could be sold at that price during the season, and if not, that they should be sold at all events. But the second letter contains a positive direction to sell at least for the specified prices; and although in the same letter the consignor says, “ it is his wish” that the goods should be sold that season, he gives no positive order to that effect. The defendants could not have failed to understand that the instructions contained in the last letter would have protected them in keeping the goods on hand, if they could not be sold at the invoice prices with the expenses added. They appeal to have so understood the directions; for in their letter to the plaintiff, dated 30th of August, 1845, they do not complain of any obscurity in their instructions, nor do they pretend that they were authorized by their tenor, to sell for the prices actually obtained; but they undertake to justify the sales on the ground that having made advances on the consignments, they were authorized to sell for their own reimbursement, although, at less than the specified prices. In this they were mistaken. Having received the invoices and instructions before they made the advances, they must be deemed to have assented to the instructions ; and were bound by them until after having found that the goods could not be sold at the limited prices, and after due notice and request, the consignor had refused or neglected to repay the advances. The defendants were therefore liable to the plaintiff for the damages consequent upon the sale without authority.

The question then arises, by what rule are the damages to be estimated!? The plaintiff claimed to recover the difference between the amount of the invoices with charges and interest, and the net proceeds of the goods.

The defendants insist that the plaintiff is entitled to recover, if at all, only according to the actual value of the goods after deducting the proceeds and charges.

Prima facia the invoice prices with the charges and interest ought to be regarded as the actual value, and if no other evidence of value had been given or offered, the plaintiff should have recovered, according to his claim. (Stevens v. Low, 2 Hill, 132.)

But the defendants proved that the goods were fairly sold at auction, on due notice with the usual publicity, and that they produced full auction prices. They offered to prove that the goods could not be sold at private sale at the invoice prices after diligent efforts for that purpose; that the goods were of inferior quality, not worth during the season more than they actually sold for at auction; and that they were likely to become unfashionable and unsaleable if kept over to another season. This evidence was excluded by the court; and the judge charged the jury that the plaintiff was entitled to recover the difference between the invoice prices with charges and interest and the net proceeds. Exceptions were taken to these decisions.

We are of opinion that the court erred in excluding the evidence of actual value offered by the defendants, and in the rule of damages stated to the jury. In all cases, excepting those of wilful or malicious wrong, the recovery should be such as to give the plaintiff a just compensation for the wrong done or the right withheld, and nothing more. This rule applies as well to actions brought by a principal against his agent as to other cases. Where, in the action against the agent, the breach of duty is clear, it will, in the absence of all evidence of other damage, be presumed that the party has sustained a nominal damage. But to recover more, there must be proof of real loss, or actual damage. (Story on Agency, § 217, c.) It is a good defence that the misconduct of the agent has been followed by no loss or damage to the principal, for then the rule applies that, although it is a wrong, yet it is without any damage, and to maintain an action both must concur, for damnum absque injuria, and injuria absque d&mno, are in general equally objections to any recovery. (Id. § 236.) Assuming as true, what the defendants offered to prove, that the goods in question sold for their full value, the plaintiff has sustained no loss, and should have recovered nominal damages only. If this verdict should be upheld, he will recover damages without having sustained injury, and be placed in better condition than if his instructions had been obeyed.

I am not aware that any considerations of public policy require the application to the present case, of a rule which produces such a result. It seems to have been thought in the court below, that if the consignor were not allowed to recover according to this rule, it would render his instructions nugatory, and practically annul the power of the owner of property to fix a price below which it should not be sold. But if the proof offered by the defendants had been admitted, the plaintiff would have been allowed to show that he could have sold the goods to better advantage by reshipping them to France or elsewhere, and in that case would have been entitled to recover accordingly. Or if the market price of such goods had risen after the sale made by the defendants, they would have been liable to pay according to such increased value. A factor thus selling goods in violation of his instructions takes upon himself the hazard of loss from the fluctuations in the market without the possibility of gain; and this is practically a sufficient security against the disobedience of his principal’s order. There is no need of subjecting him to a higher penalty.

There is a direct adjudication on this point in 12 New Hamp. Rep. 239, 242, in the case of Frothingham v. Evertson. Evertson delivered a quantity of wool in the month of March, to be sold at not less than 24 cents the pound. Frothingham made advances. The price of wool fell soon after the consignment, and continued to fall until October, when Frothingham, without calling on his principal to refund the advances, and without notice to him, sold the wool at 14 cents the pound, which was all it was then or afterwards worth. It was held, in an able opinion delivered by Chief Justice Parker, that the measure of damages was the amount of injury sustained by the sale contrary to the orders of the principal, and that no actual loss appearing to have been sustained by the wrongful act of the factor, the principal was entitled only to nominal damages. The present case should be governed by the same principle.

The judgment of the superior court should therefore be reversed, and a new trial awarded.

Bronson, J.

The consignees had no right to sell the goods below the price mentioned in their instructions from the consignor, without first calling on him for the reimbursement of their advances. As no such demand was made, the defendants are liable to an action, and must pay nominal damages, at the least. In settling the amount of damages in such cases, if there is no proof to the contrary, the price mentioned in the instructions should, I think, be deemed the true value of the goods. But the consignor would be at liberty to enhance the damages, by proving that the goods were worth more than the minimum price which he had put upon them; and I see no reason why the consignee should not be allowed to reduce the damages, by showing that the goods Were of less value than the price mentioned in the instructions. If the goods were sold at their full value, the consignor has sustained no damage, and should recover only a nominal sum. The factor should be required to give strong proof for the purpose of showing the market value to be less than the instruction price; but he may, I think, give the proof, if he can. Clearly the consignor has sustained no damage beyond the difference between the actual value, and the price obtained on the sale; and I see no ground for making . this case an exception to the general rule, which gives the injured party compensation for the pecuniary loss which he has sustained, and nothing more. In Frothingham v. Evertson, (12 N. Hamp. 239,) the court held, that the measure of damages in cases of this kind is, the amount of injury which the consignor has sustained by selling contrary to orders; and if there has been no actual loss, he will only be entitled to nominal damages. I think this a sound rule; and am not aware of any case which holds a different doctrine.

It is said, that this rule of damages will enable factors to violate the instructions of their principals with impunity. But that is a mistake. If they sell below the instruction price, though at the then market value, they will take the peril of a rise in the value of the goods at any time before an action is brought for the wrong; and, perhaps, down to the trial. The owner has a right to keep his goods for a better price; and if the market value advances after the wrongful sale, the increased price will form the standard for ascertaining his loss, which the factor, who has departed from instructions, must make good.

If it be a matter of any moment in this action, there is no room for doubt that the defendants, though they mistook the law, intended to act in entire good faith towards their principals. And' if the evidence which they offered had been received, it would have appeared, that the plaintiff, instead of suffering loss, was benefited by the sale.

When the consignment is of articles which have no market value, such, for example, as antique paintings, statues or vases, the rule which has been mentioned will not apply. In this case, the goods had a market value, which could easily be ascertained.

I am of opinion that the court erred in rejecting evidence, and in the rule which it gave concerning the measure of damages.

Judgment reversed.


author: Ruggles, J,

text:
    Battle vs. The Rochester City Bank.
    Where the obligation of a party is to pay a stun in land, and he is not in default, he can not be compelled to pay in money.
    By a special arrangement between the plaintiff and defendants the latter were to pay the former the sum of $1823,44, by applying it on a contract for the sale of land which the defendants were to execute to the plaintiff. The land contract was entered into accordingly, and the $1823,44 endorsed thereon as the first payment. The plaintiff failed to make the subsequent payments, and for that reason the defendants rescinded the contract in pursuance of a provision therein giving them a right to do so. The plaintiff then brought an action for the $1823,44. Held, that he could not recover.
    Where a sum is receipted upon a contract as paid in money, it may be shown by parol that the payment was not in money.
    Where a contract is rescinded by the mutual consent of both parties, and without the fault of either, they are restored to the legal rights which they had immediately before the contract was made. Per Rüggles, J
    In May, 1841, the plaintiff Battle was indebted to the City Bank of Rochester upon notes which had been discounted, in the sum of $5,400 besides interest. This sum was secured by a mortgage made by Battle to the Bank on a dwelling house in Alien-street in the city of Rochester. This mortgage was after-wards foreclosed and the bank purchased the house at a master’s sale on the first of July, 1841.
    On the 19th of October, 1841, the bank held a mortgage executed by the plaintiff Battle to one Ely, and assigned by him to the bank, upon a warehouse in Rochester. The mortgage had at that time been foreclosed by a decree, and the warehouse was to be sold on the 22d of the same month. Under these circumstances it was agreed in writing, on the 19th of Oct. between the parties to this suit, that if the bank should at the mortgage sale purchase the warehouse for the sum due on the Ely mortgage, they would in settlement with the plaintiff allow him $9000 for the dwelling house and warehouse, and that after deducting from that sum the amount due from the plaintiff to the bank on his notes, with interest, <fcc. the balance should be applied and allowed in part payment for a farm called the Chapin farm, containing 154 acres, which by the same agreement the plain'

      tiff Battle was to purchase from the bank at $30 the acre, and for which the bank was to give Battle a contract.

    The bank purchased the warehouse at the sale under the Ely mortgage, for the debt and interest due thereon, and upon an accounting between the plaintiff and the defendants soon after-wards the plaintiff was allowed $9000 for the warehouse and dwelling house, and after deducting from that sum the debt due from the plaintiff to the bank, there remained a balance of $1823,44 to be applied on the purchase of the Chapin farm.
    On the 9th of November, 1841, the contract was made for the sale of the Chapin farm by the bank to Battle. This contract was made in' pursuance and fulfillment of the previous agreement in writing made on the 19th of October, containing the provision that the balance which might on settlement be found due from the bank to Battle should be endorsed on the contract for the Chapin farm.
    The contract of the 9th November, 1841, was as follows: The bank covenanted and agreed with Battle to sell and convey to him in fee the Chapin farm by a good and sufficient warranty deed, upon payment by Battle of the sum of $4650 and interest, in manner following, to wit; in hand the sum of $1823,44, and the balance, $2826,56, in five equal annual installments from the first of May, 1842, with interest annually from the 22d day of October preceding, and all taxes to be assessed on the premises. Battle covenanted to pay the money in manner aforesaid, and the payment was thereby declared to be a condition precedent to the execution of the deed. And in case of failure on the part of Battle to make either of the payments or in any respect to fulfill the contract, the same was to become void on such failure, if the party of the first part should elect to rescind it, and on his previously giving notice of at least thirty days of such election; and in case of such failure and the consequent rescinding of the. contract, Battle was to forfeit one hundred dollars as the ascertained and liquidated damages, and retain no legal or equitable interest in the premises after the contract was rescinded. The party of the second part was authorized to take immediate possession of the land.

      The following receipt was endorsed on the contract, viz. ‘ $1823,44. November 9th, 1801, received on the within contract eighteen hundred and twenty-three dollars forty-four cents, according to its terms and conditions. W. S. Philpot, Cashier.’' This sum is stated' in the bill of exceptions to be the same which was found due from the bank to Battle on the accounting in pursuance of the agreement of the 19th of November. It was not money actually paid by Battle. Battle took possession of the premises, but failed in paying the first installment and interest. In fact he never paid any thing on the contract.
    On the 12th of May, 1843, the bank gave him a written notice that the first installment and interest had become payable on the first of that month and was unpaid, and that the bank elected to declare the articles of agreement void, and that the same be and were rescinded unless that installment and interest should be paid within thirty days, and that the bank would then and there require possession of the land. Battle did not -make the payment, but surrendered the possession to the bank, who have since remained in possession. This suit was commenced in June, 1843, for the purpose of recovering the said sum of $>'1823,44, endorsed on the contract. The declaration contained a special count, a count for land bargained and sold to the defendants at their request and by the plaintiff suffered to be conveyed to them; also the common money counts. The . defendants demurred to the special count, and the .supreme court rendered judgment for them on the demurrer. Issue was joined upon the other counts, and on the trial at the Monroe county circuit, before Dayton, circuit judge, the plaintiff proved the foregoing facts and was nonsuited. After judgment in the supreme court, the plaintiff appealed to this court.

      S. Boughton, for appellant,
    cited Ketchum v. Evertson, (13 John. 359;) Ellis v. Hoskins, (14 John. 363;) Greenby v. Chevers, (9 id. 126 ;) Green v. Green, (9 Cowen, 46;) Hudson v. Swift, (20 John. 27;) Canfield v. Westcott, (5 Cowen, 170, 171, 172;) Weaver v. Bentley, (1 Caines, 47;) Ballard v. Walker, (3 John. Ch. 60;) Gillet v. Maynard, (5 John. 85 ;)
      Fuller v. Hubbard, (6 Cowen, 13;) Raymond v. Barnard, (12 John. 274;) 2 Comyn on Contracts, 75; Healey v. Utley, (1 Cowen, 345;) Spring v. Coffin, (10 Mass. 21;) Shearer v. Fowler, (7 id. 31;) Whipple v. Dow, (2 id. 415;) Stevens v. Snow, (3 Burr. 1237.)
    H. Humphrey, for respondents.
   Ruggles, J,

Assuming that the contract of the 9th of November was rescinded by the mutual and voluntary consent of both parties, and without the fault of either, (and this is the most favorable view for the plaintiff,) the parties must be deemed to be restored by that rescission to the condition in which they stood immediately before the contract was made. (5 East, 449; Hunt v. Silh, 15 Mass. 319 ; Conner v. Henderson, 6 Gill & John. 424.) In point of fact the rescission was occasioned by the plaintiff’s breach of the contract, and was a consequence of that breach. He therefore has no claim to be placed thereby on better ground than he occupied when the contract was made. At that time the bank owed the plaintiff the sum of $1823,44, but not in so much money. It was payable in land. Speaking more exactly, the bank was bound by the agreement in writing of the 19th of October, to give the plaintiff a contract for the conveyance to him of the Chapin farm at $30 the acre, and he was bound to take that contract and apply the balance due from the bank, as above mentioned, in part payment for the farm, and to pay the residue in money. The bank, therefore, did not owe him money and he could not compel payment in money. It was an essential part of the agreement existing before and at the time when the last contract was made, that the sum now claimed by the plaintiff, in money, should be applied upon thé plaintiff’s purchase of the Chapin farm, and it was the defendants’ undoubted right to have it so applied.

In Wilt v. Ogden, (12 John. 56,) the plaintiff declared on an agreement or promissory note, made by the defendant, to pay the plaintiff $270, in drawing plaster at so much per ton, from Ithaca to Owego, and also for goods sold and delivered. The note was given for a pair of horses sold by the plaintiff to the defendant. The plaintiff proved the note at the trial, but the defendant proved that he had been ready and offered to draw the plaster. The plaintiff not being able to recover on the note, offered to abandon his count thereon, and claimed to recover the value of the horses on the other counts. But the plaintiff was nonsuited, and the court say, upon the motion to set the nonsuit aside, that to allow the plaintiffs to recover back the original consideration, would be permitting them entirely to change the contract, and to recover in money when payment was to be made in the performance of services, and this too without any default on the part of the defendant.

This is in principle like the case in hand. The rescission of the contract in question by the bank was not a breach of it, but was in pursuance of a provision contained in it, and the defendants are chargeable with no violation of it whatever.

The court is nevertheless called upon by the plaintiff to change the defendants’ Obligation to pay in land, into a duty to pay in cash, and that against the consent and without the default of the defendant. I know of no principle on which this can be done in any form Of action, either at law or in equity.

The plaintiff, in fact, paid no money on the contract of the 9th of November. The receipt of the sum now claimed was indorsed on that, contract as if money had been paid. But the receipt is open to explanation; the plaintiff has explained it by Iris own proof. The sum which the parties had bound themselves to apply in part payment for the Chapin farm, was so applied by that receipt, but no money was parted with by the plaintiff. The plaintiff’s difficulty, however, does not lie in the form of his pleadings, but in the want of merits in his case. The first count in the declaration is bad for the reason, that upon the facts set forth in it, there was no legal liability on the part of the defendant to pay the plaintiff the sum claimed, in any other mode than by allowing it upon the purchase of the Chapin farm, which the plaintiff has refused to cany into effect. The judgment of the court below upon the demurrer was therefore not erroneous. The plaintiff was rightly nonsuited.

Judgment affirmed with costs.