author: By the Court. Bosworth, J.

text:
    J. & R. Milbank & Co. v. A. Dennistoun & Co.
    The plaintiffs, at New York, in June, 1846, shipped to the defendants, at Liverpool, 5,000 bbls. of flour, per “N. Biddle,” and 3,000 per “Georgianna,” for sale, and by letter of June 25th, 1846, said, “You will please make no disposition until we give you our wishes, per 1 Caledonia,' unless 22s. in bond is attainable, in which case, if in your judgment, you deem it our interest to accept that sum, please to do so.” On the 2lth of June, 1846, per steamer “ Caledonia,” the plaintiffs wrote to defendants thus: “We fear the first introduction for consumption may tend to continue low prices, as they will probably be large immediately on the passage of the new bill.” (Meaning, by the new bill, the British Com Law Bill, reducing the duties on foreign breadstuffs, then before Parliament, which received the royal assent on, the 21th of June, and went into operation three days after.) “Believing that after the stocks now in bond shall have been reduced by consumption, &c., that an improvement may ensue, we would express our desire that these parcels may be withheld from the market, until the operation of the new law shall have produced its results. We hope we may not err in assuming its passage; though, if 22s. in bond is attainable on arrival, and you think our interest dictates such sale, please so dispose of it.” The defendants received this the 12th of July.
    By a letter of the 31st of July, and received by the defendants on the 12th of August, 1846, the plaintiffs say: “We suppose that ere this the crop of wheat has been ascertained, as to its probable yield, and the grain and flour conformed to such result. We therefore ask you to exercise your discretion in effecting sales for us.” On the 4th, 5th, and 7th of August, 1846, the defendants sold the “N. Biddle” flour, at prices which produced $2 11 per bbl. net, being out of bond, and the duties on it having been paid.
    The defendants advised the plaintiffs of such sale, by a letter dated the 18th of August, 1846, in which letter the defendants said that,—“ After writing you on the 3d inst., we were induced, by the continued fine appearance of the season, to sell your flour by the ‘Nicholas Biddle ’ at 21s., as per note above; and. this we now regret, as on the 11th or 12th inst., a great change took place in the weather, and the potato crop was completely blighted.”
    The flour, per the “ Georgianna,” being of the same quality, was sold at later periods, and at prices which would have made .the flour, per the “N. Biddle,” produce, With interest to the day of trial, $14,530 29 more than the plaintiffs realized from it. In an action to recover this sum as damages, on the grounds that such a loss had been sustained by reason of the defendants disobeying the orders given to them, and by reason of their negligent performance of their duty, as such factors and agents, it was Md,
    1. In determining the question, whether the defendants violated their instructions, in selling at the time they did, the letters of the 25th and 27th of June are the only letters to be considered, to ascertain the precise instructions under which the defendants were then acting, as they had then received no others which gave any.

      2. The letter of the 27th of June is not fairly susceptible of two interpretations, and it is the duty of the Court to construe it, and declare its meaning.
    3. As 22s., in bond, could not be obtained, on arrival of the flour, it was the duly of the defendants to withhold the flour from market until the stock in bond, on the passage of the Corn law, had been reduced by consumption, &c. If it was sold before that, it was sold before the defendants were authorized to sell, and they are liable for the consequences of that act.
    4. It was the right and duty of the defendants, after the stock, then in bond, had been introduced into the market, and had been reduced by consumption, &c., to determine, in the exercise of good faith, and of proper care and diligence, whether, and when, the Corn law had produced its results, and also to determine, thereupon, when their duty and the interests of the plaintiffs required them to sell, acting under such instructions.
    If they did not sell until after such introduction and reduction, they are not liable, unless they failed to exercise the care and diligence which a prudent consignee, acting on his own account, and with the knowledge or information which the evidence shows they possessed, would have exercised.
    5. If they failed to exercise that care or diligence, or disobeyed their instructions, as above explained, in selling before the change in the market, of which they speak in their letter of the 18th of August, they are liable. If they did not do either, they are not liable. If they did do either, they are liable.
    6. After the change in the market, mentioned in that letter, it was their -duty to act with reference to the interests of the plaintiffs; as they would be affected by that change and the causes that produced it.
    7. Under the letter of the 31st of July, and received on the 12th of August, 1846, the defendants were bound to exercise good faith, and reasonable care pnd diligence—such care and diligence as a consignee, of ordinary care and prudence, not coerced by any necessity to sell, and acting on his own account, would have exercised under the same circumstances. Whether they exercised such care and diligence, was a question of fact, to be determined by the jury. If they failed to exercise it, in selling when they did, they are liable.
    8. To ascertain the damages which the defendants are liable to pay, if liable at all, the jury must, upon a consideration of all the evidence bearing upon the questions, at what time the market prices began to advance, what continued to be the tendency of prices, and what must have been the views of men of prudence, having such information as the defendants had, and acting with reasonable care and diligence, as to the time when this flour might have been .sold, without justly incurring the imputation of having acted without reasonable care and diligence, ascertain that day, and then determine what price could have been obtained for it at that time, in selling it in the usual mode, and in the exercise of proper care and diligence. The defendants should be charged with that price, and be credited with advances made and charges paid, and the further expenses that would have accrued, and interest on them, to the time when the price of the flour would have been realized by them. The balance, with interest to the time of the verdict, is the sum the plaintiffs are entitled to recover.
    9. The jury having found, under a question specially submitted, that the defendants, in selling at the time they did, failed to exercise that care and diligence which prudent consignees, having the information which the defendants then had, and acting on their own account, would have exercised, it was also held, that the vari-

      anee between the fact found, and a declaration which, in addition to alleging a disobedience of orders, also averred that the defendants acted “carelessly, and negligently, and inattentively, sold prematurely, and for less than they could have ■ obtained; if they had faithfully performed their duties,” was immaterial, inasmuch as the act of April 11, 1849, (Laws of 1849, p. ÍOS, § 2, Sub. 1) applied sections 169 to 1Í6 of the Code, inclusive, to future proceedings in civil actions which were pending when the Code took effect.
    Judgment, on a verdict in favor of the plaintiffs for $T,829 62, affirmed.
    (Before Düeb, Bosworth, and Slosson, J.J.)
    Argued, March 12;
    decided, May 16, 1857.
    This action came before the Court at General Term, on an appeal by the defendants, from a judgment in favor of the plaintiffs, and from an order denying a motion for a new trial. It was put at issue prior to the Code, and the pleadings are drawn under the pre-existing practice. The complaint contains the common money counts, and two special counts.
    The first special count states, that the plaintiffs are, and were merchants and copartners in trade in Hew York, and the defendants are, and were merchants and factors; and partners trading in Liverpool, the consignment to the defendants in June 1846 of 5,000 bbls. of flour, worth $35,000, for sale, under instructions as to selling it, which the defendants received and agreed to obey,' but which they violated by selling before they were authorized to sell, and “ in such sale, conducted themselves negligently, carelessly, and without due attention to their duty, as such factors of the plaintiffs, and through such carelessness, negligence, and-inattention, sold the said merchandise prematurely, and before the same ought to have been sold by the defendants,” and at low and insufficient prices, whereby the plaintiffs were damaged to the amount of $20,000. The second special count reads thus, viz:
    “ And also, for that whereas the said defendants, heretofore, to wit, on the eighteenth day of July, in the year last aforesaid, at Liverpool aforesaid, received a certain other large quantity of merchandise, to wit, other five thousand barrels of flour, of the said plaintiffs, of great value, to wit, of the value of thirty thousand dollars, at Liverpool, to be there taken care of, dealt with, disposed of, and sold by the defendants as factors and agents of. the plaintiffs in this behalf,- for a reasonable reward, to be allowed to them by the said plaintiffs in this behalf, whereby it became and was the duty of the plaintiffs, among other things, to obey the orders of the said plaintiffs, touching the sale, management, and disposal of the said last mentioned merchandise; and in consideration thereof, the defendants then and there undertook and promised to the plaintiffs to perform and fulfil their duty as factors of the plaintiffs in this behalf, to wit, on the day and year, and at the city and county of New York aforesaid.
    “Yet the defendants, their promise in form last aforesaid made, not regarding, but contriving and intending to deceive and defraud the plaintiffs in this behalf, and contrary to their duty as their factors, and contrary to the orders of the said plaintiffs in this behalf, given to, and received by the defendants, and carelessly, and negligently, and inattentively sold the said merchandise prematurely, and for low and insufficient prices, and for less prices than they might and could have had and obtained therefor, if they had well, faithfully, and diligently performed and fulfilled their duty as factors of the plaintiffs in this behalf; and thereby the plaintiffs lost the difference in price which they would have received if the defendants had properly conducted themselves in this behalf, which difference in price amounts to a large sum of money, to wit, twenty thousand dollars.”
    The' defendants plead, (first), non-assumpsit, as to all the alleged premises, except as to the sum of $153.95 parcel of the said several sums of money, and as to that sum, (second) a tender thereof before suit brought, averring a continuing readiness, and present offer to pay it. The plaintiffs replied to the second plea, admitting the tender, and took the money as a satisfaction pro tanto.

    The action was brought to trial, before Mr. Justice Bosworth and a jury on the 27th of May, 1856.
    On the trial, it appeared that, at the time of the transactions in question, the plaintiffs were commission merchants in New York with a branch house in New Orleans.
    The defendants were commission merchants in Liverpool, with a branch house in New York.
    In the month of June, 1846, the plaintiffs shipped to the defendants 5000 barrels of flour by the ship Nicholas Biddle, and 3000 barrels by the ship Gieorgianna. The flour was all of the same quality, and arrived about the same time, and was all consigned to the defendants as factors.

      The plaintiffs sent two letters of instructions, one dated June 25, 1846, and the other, more particular and explicit, dated June 27 of the same year, which letters were both received by the defendants before the flour arrived. The British Corn Law Bill reducing the duties on foreign breadstuffs was then before Parliament, and the flour was shipped and the instructions were given in view of the immediate passage of that law.
    The bill received the royal assent on the 27th of June, 1846, and went into operation three days after.
    The defendants sold the 5,000 barrels per Nicholas Biddle on the 4th, 5th and 7th of August, at such prices as to give the plaintiffs but $217 per barrel; net.
    Before they sold the Georgianna flour, one .of the plaintiffs reached Liverpool, and that shipment was not sold until September, October, and November following.
    If the Biddle flour, which was of the same quality, and which arrived at the same time, had been held as the Georgianna, it would have netted the plaintiffs, computing interest up to the day of trial, $14,530 29 more than they received.
    The plaintiffs claimed this sum as their damages for the alleged sacrifice of their flour. Under the rules of law, as stated by the Court, the jury found that the defendants would have been excusable had they sold the flour at an earlier day than, according to the claim of the plaintiffs, it could properly be sold, and the verdict was rendered for the value of the flour on that day, to wit, for $7,829 62.”
    The letters, dated June 25th and 27th, 1846, are as follows, viz.:
    “New York, June 25, 1846.
    “ Messrs. A. Dennistoun & Co., Liverpool:
    “ Gents.—We had this pleasure 30th ulto., advising of shipment to your address, an invoice of flour, pr. ship 'N. Biddle, from N. Orleans.

      “ We would now inform of having consigned to you five thousand (5,000) barrels flour, pr. 'N. Biddle,' and three thousand barrels flour p. ship ' Georgianna,' (3,000) both from New Orleans. Owing to some oversight at N. O. we have not rec’d the entire sets of bills of lading, and have therefore been unable to perfect .our arrangements with your house here, but hope to do so in time for the ' Caledonia’ mail; when we shall hand you invoices.
    “You will please make no disposition until we give you our wishes, pr. ‘ Caledonia,’ unless 22s. in bond is obtainable, in which case, if in your judgment deem it our interest to accept that sum, please to do so.
    “ Our R. W. Milbank designs visiting your city soon, and we trust our correspondence may be extended. Owing to the apprehension of exhorbitant premium for the ‘war risk,’ being demanded, we have, under the advice of your house here, covered these shipments by insurance in our city Co’s. The same is subject to an average of five per cent, damage.
    “ Very respectfully,
    “ I. & R. Milbank & Co.”
    “ Caledonia.
    “New York, June 27,1846. “Messrs. A. Dennistoun & Co., Liverpool:
    “ Gentlemen,—Enclosed you will please find invoices of five thousand barrels ‘superfine’ flour, pr. ship ‘Nicholas Biddle,’ and three thousand barrels ‘ superfine ’ flour pr. ship ‘ Georgianna,’ to your address. The bill lading we have handed to your Messrs. Dennistoun & Co., with whom we have made arrangements to advance us two dollars and seventy-five cents pr. barrel on the shipment per ‘ N. Biddle,’ and two dollars and twenty-five cents pr. barrel on shipment pr. ‘ Georgianna,’ based on sixty days sterling bills at 8 pr. ct. This flour is from the best Cincinnati mills, and in fine order, having been forwarded directly from flat-boats to ships. We are induced to hope for its sharing a better fate than ordinary shipments from N. Orleans, as we trust it may arrive out in sweet condition. When shipping we had hoped for a better market than the prospect now justifies. We fear the first introductions for consumption may tend to continue low prices, as they will probably be large immediately on the passage of the new bill. Believing that after the stocks now in bond shall have been reduced by consumption, &c., that an improvement may ensue, we would express our desire that these parcels may be withheld from the market until the operation of the new law shall -have produced its results. We hope we may not err in assuming its passage. Though if 22s. in bond is obtainable on arrival, and you think our interest dictates such sale, please so dispose of it; as we have before advised, the shipments are insured here under direction of your house. Our R. W. Milbank designs visiting your city by steamer 17th July, and will confer with you.
    “Very respectfully,
    “ Tour ob’t serv’ts,
    “ I. .& R. Milbank & Co.”
    Endorsed—“Rec’d 12th July.”
    On the 30th of June the plaintiffs wrote again, stating that the flour was insured in New York, at $4 a barrel, and that R. W. Milbank would soon communicate with the defendants in person.
    On the 3d of July the defendants wrote and sent their circular, reading thus:

      “ Cambria steamer.
    “ Liverpool, 3d July, 1846. “Messrs. J. & R. Milbank & Co., New York:
    “Dear Sirs,—We have none of your valued favors since we last addressed you on the 18th June.
    “ Our New York house advise us that you are sending to our address 3,000 barrels flour, p. Georgianna, to which, as well as to consignment pr. Nicholas Biddle, we shall give every attention, and trust they may come to a good market.
    “ The flour market was very dull to-day, and the printed quotations in the annexed may be considered from 6d. to 1s. p. barrel too high.
    “ We remain, dear sir,
    “ Yours truly,
    “A. Dennistoun & Co.”

      (Extract from Circular.)
    “Grain and Flour.—The new corn bill received the royal assent on the 27th ultimo, and is now law. The whole stock of foreign grain and flour in this port, and throughout the kingdom, upwards of two millions of quarters of wheat and flour together, has been cleared at the Custom House, at the minimum duty, viz., 4s. per quarter on wheat, or about 2s. 5d. on the barrel of flour. The whole of this stock is now available for home consumption, and has been freely brought forward the last few days. Prices have altered so little, that the old quotations must remain, the duty being added. Free wheat has declined 4s. to 5s. per quarter within the last few days. Western Canal and Genesee flour is about Is. to Is. 6d. per barrel higher than on the 18th June, being now quoted 27s., and Mew Orleans, Virginia and Philadelphia 24s. to 25s. per barrel; these quotations being understood to apply to duty paid flour. Indian com is in very dull demand, and prices again lower, white and yellow now bring about the same price, 30s. to 33s. per 480 lbs.”
    On the 18th of July the defendants replied to the plaintiffs’ letters of the 25th and 27th of June, and attached a printed cir= cular, as follows:
    “ Pr. Boston str.
    “Liverpool, 18th July, 1846.
    “Messrs. I. & R. Milbank & Co., Mew York:
    “ Gentlemen,—Since writing you on the 3d inst., we have received your valuable favors of the 25th June, by the Gt. Western, and 27th and 30th June, pr. Boston st’s, and we duly note their contents.
    “ The ‘ M. Biddle ’ arrived to-day with your 5,000 brls. flour, and we shall pay the present duty on it at once, as next week it is probable it will go up to 6s. on wheat, and 3s. 7|d. on flour. You seem inclined to think that 22s. per brl. should be taken for it in bond, but this is 25s. free at present; and this figure is not obtainable for Mew Orleans flour. If of good quality, and sweet, 24s. might be obtained. In two days we hope to get a sample, and have it valued; but as we have little expectation of getting an offer at the price you allude to, we shall likely store the flour, and await the arrival of Mr. R. W. Milbank, with whom we can confer as to the future proceedings. We refer to the annexed circular for the state of our. markets, and business generally, and are, gentlemen,
    “ Your obd’t servants,
    “A. Dennistoun & Co.

      {Extracts from Circular annexed to above letter.)'

    “ Grain and Flour.—The weather has been favorable generally throughout the kingdom since the 3d instant. Harvest operation's have begun in the southern counties, and will be general in ten days or a fortnight, should the fine weather continue. The importations, too, of foreign grain and flour, having been large, and dealers continuing disinclined to buy, except for immediate use,-prices have been further depressed. The best New York wheat will not bring more than 7s. 6d. per bushel of 70 lbs.; Western Canal and Genesee flour, 22s. 6d. per barrel; New Orleans, Virginia and Philadelphia, 23s. to 25s. per barrel. Indian corn is quite neglected, and has been sold as low as 26s. per quarter of 480 lbs.
    “ The duty on foreign wheat is now 5s. per quarter, and 3s. on the barrel of flour.”
    On the 3d of August, the defendants sent the following letter and the printed circular attached, to the plaintiffs, viz:
    “Liverpool, 3d August, 1846.
    “Messrs. I. & R. Milbank & Co., New York:
    “ Gentlemen,—Since we had this pleasure on the 18th July, the'Georgianna, from New Orleans, has arrived with 3,000 brls. flour on your account. We much fear that this shipment, as well as that per Nicholas Biddle, will disappoint you, as in common with almost all the flour from the Gulf this year, if not sour, will only bring the price of sour.
    “ Our market has been at a stand for some days, but as the last two or three days have been unsettled, there may possibly be some activity to-morrow.
    “The annexed circular gives you our general views as to business.
    “And we remain, dear sirs,
    “ Yours truly,
    “A. Dennistoun & Co.”

      (Extract from the Circular annexed to the above.)

      “ Grain and Flour.—The weather has been remarkably favorable for the grain crops for the last fortnight. Harvest in the southern counties is now pretty general, and a fortnight more of warm and dry weather will make it so throughout the kingdom. This forward state of our crops has had an important effect on prices, and wheat must be quoted 4s. to 5s. per quarter lower than on the 17th ultimo. Fine American wheat will not bring more than 7s. per bushel of 80lbs.; Western Canal and Genesee flour 25s. to 25s. 6d. per barrel; Hew Orleans, Virginia and Philadelphia 22s. to 24s. per barrel. Indian corn has been in much better demand, in consequence of the accounts from Ireland of the potato crop being very alarming. Yellow com is scarce, and much inquired for, and prices range from 28s. to 80s. per quarter of 480 lbs.
    “ The duty on foreign wheat has advanced to 6s. per quarter, in consequence of the rapid decline in the average price. On flour, it is 3s. 7 ⅛d. per barrel, with every chance of a still further advance in the duty, should the weather continue favorable.”
    After writing that letter, the defendants sold the flour shipped per N. Biddle, as follows:

      Note of Sale of Flour.

    “ 1846.
    “August 4'. 2,486 barrels flour per Hicholas Biddle, sold at
    21s. pr. 196 lbs.
    (Í tt tt 100 (( (Í do 21s. 6d. it K tt 5. 861 ÍÍ ÍC do 21s. tt it <£ 7. 1,546 ££ tt do 21s. tt
    “ 4,993 barrels flour.”
    This at the time of the sale was out of bond, and after the duties and charges were all paid, and was equivalent to a sale at 17s. in bond on arrival.
    At this time, no letters or instructions whatever had reached the defendants, except those above given.
    The defendants did not advise the plaintiffs of this sale until the 18th of August, when they accompanied the sale note by the following letter:—•

      “ Liverpool, 18th Angt., 1846.
    “ Messrs. I. & B. Milbank & Co., New York:

    “ Gentlemen,—After writing you on the 3d inst., we were induced, by the continued fine appearance of the season, to sell your flour by the Nicholas Biddle at 21s., as per note above, and this we now regret, as on the 11th or 12th inst. a great change for the worse took place in the weather, and the potato crop was completely blighted. A great change has accordingly taken place in the last five or six days in the corn markets all over the country, and New Orleans flour has risen 2s. per brl., with every prospect of a further advance, as the advices are daily*more decided, from every quarter of the country, as to the irreparable injury wh. the potato crop has sustained. We accordingly hold your 3,000 barrels, ex. ‘ Georgianna,’ in the hope of better prices—in wh., we trust, we shall not be disappointed.
    “ There are 7 brls., ex ' N. Biddle,’ short delivered, for wh. we claim on the ship. We hope by the next steamer to send you ac. sales.”
    On the same day, by the same steamer, the defendants sent another letter, with a printed circular, as follows:
    “ Liverpool, 18th August, 1846.
    “ Sir,—We beg leave to announce that we have assumed, as a partner of this house, Mr. Thomas Sellar, recently one of the resident partners of our New -York firm. Referring to his signature below,
    “We are, sir,
    “ Your obedient servants,
    “ A. Dennistoun & Co.”
    “ Mr. Thomas Sellar will sign
    “ A. Dennistoun & Co.”

      {Extracts from Circular annexed 1a the above)

    “ Grain and Flour.—We have a considerable change to note in the grain market since our last. Within the last few days, the accounts from Ireland, and also from every section of this island, in regard to the potato crop, are most alarming. It seems how beyond a doubt, that this crop will be almost an entire failure; and as the weather has been wet and unfavorable also for securing the wheat crop, we must quote higher prices for every description of breadstuffs: Western Canal and Genesee flour is in good demand at 26s. to 26s. 6d. per barrel, duty paid; New Orleans and Philadelphia, at 23s. to 25s. per barrel. Indian Corn continues in great demand, and 32s. 6d. to 33s. per quarter of 480 lbs. is readily given for large quantities.
    “ The duty on foreign wheat has further advanced, and is now 8s. per quarter, which on flour is 4s. 9¾ d. sterling per barrel. As the bulk of the new wheat will be of poor quality, and in indifferent if not in bad condition, owing to the wet weather which has prevailed during the last fortnight, it is very probable that the average price may continue low, and the duty high for some time to come.”
    On the 15th of August, the plaintiffs not having heard that any of their flour had been sold, wrote to the defendants, as follows;
    “ Hibernia.
    “ New York, Aug. 15, 1846. " Messrs. A. Dennistoun & Co., Liverpool:
    “Gentlemen,—Your kind favor of 18th July is before us. We regret to find your flour market so indifferently sustained; but are disposed to hope there may yet be apparent some redeeming trait in the market ere long.
    “ We can add only, that our R. M. Milbank designs having the pleasure of a personal interview after the arrival of the ‘ G. Western,’ on which he has taken passage. In the meantime, unless our interests imperatively demand it, will you have the goodness to await the arrival of the ‘ G. Western’ before effecting sales for us ?
    “ Very respectfully,
    “Your ob’t servts,
    “ I. & R. Milbank & Co.”
    The plaintiffs, on receiving information of the sales made on the 4th, 5th, and 7th of August, wrote to the defendants as follows, viz.:—

      “ Britannia.
    “ New York, Sep. 15,1846.
    “ Messrs. A. Dennistoun & Co., Liverpool.
    “ Gentlemen,—'Yonr favor 18th ulto. has been reed., noting sales of five thousand barrels flour pr. ‘ N. Biddle,’ at the lowest point of the season, say 21s. We were quite surprised that you would force our flour, having in possession our wishes to hold until the result of the crop in your country should have been known; and, particularly, as you took no occasion, in your letter of 3d August, to decline complying with our suggestions, we had a right to suppose you would hardly effect sales the following day.
    “WiR you -have the goodness to state if the flour pr. ‘N. Biddle’ was sour or sweet? We had every hope that it would go out sound; and were astonished to find by yours of August 3d, that no discrimination was made in ‘ Gulf flour.’
    “We trust we may get better act. from the Georgianna ship? ment.
    “Yours respectfully,
    “I. & R. Milbank & Co.”
    The defendants, on the 3d of October, 1846, wrote to the plain? tiffs, thus:—
    “Liverpool, 3 Got,, 1846. “Messrs. I. & R. Milbank & Co., New York:
    “Dear Sirs,—Since we had this pleasure, on the 18th Sept,, we have received your esteemed favor of the 15th idem, and note its contents. We regret exceedingly the unfortunate sale per ‘Nicholas Biddle;’ at the time it was made, however, the potato blight had not occurred, and the prospect of a good harvest was before us.”
    (Extracts from Circular annexed to the above.)
    “Flour and Grain.—'The distressing accounts of the scarcity in Ireland, and the continued demand for the Continent, have caused a farther advance in the price of flour of 4s. per barrel.”
    On the 31st of October, 1846, the plaintiffs replied to the defendants’ letter of the 3d of that month as follows, viz.

      “ Caledonia.
    “ New York, Oct. 31,1846.
    “ Messrs. Dennistoun & Co., Liverpool:
    “ Gentlemen,—Your favor 3d inst. is duly at hand. We have not addressed you for the past few steamers, our E. W. Milbank being in personal communication with you.
    “ We have been long looking for ac. sales flour pr. ‘N. Biddle,’ that we might see precisely the condition of the sale, &c., and hope soon to hear from you on that subject. Our E. W. Milbank, as you are aware, made known to you that he took exceptions to the sale, as reported; and your house here were duly informed that we also excepted to the sale, as reported.
    “ We trust that, after viewing the case, you have determined to •furnish such sale and acs. as will conform to our instructions when shipping.
    “ These we hope soon to receive, and, in the meantime, remain, “Yours respectfully,
    “ I. & E. Milbank & Co.”
    The plaintiffs wrote the following letter on the 31st of July, 1846, to the defendants, who received it on the 12th of August following:
    “ Cambria,
    ' New York, July 31,1846.

      " Messrs. A. Dennistoun & Co., Liverpool:
    “ Gents.,'—Annexed please find duplicate of ours of 21st instant, per ' Hottingeur.’
    “We suppose that ere this the crop of wheat has been ascertained as to its probable yield, and the grain, and flour conformed to such result. We therefore ask you to exercise your discretion in effecting sales for us.
    “Can you encourage shipments of wheat from N. Orleans, handsomely fanned and cleaned? We would ship you a parcel, if you can so advise.
    “ Yours very respectfully,
    “ I. & E. Milbank & Co.”
    Endorsed—“ Rec’d 12th August.”
    On the trial, the defendants" read the depositions of various witnesses residing in England, who had been examined on commission, and on this appeal claim that such depositions, and other evidence in the cause, establish the following facts, viz.:—
    “ The stock of flour and wheat in bond previous to the passage of the com law, had accumulated, in anticipation of the reduction of the duty.
    “ The operation of the new law was to release from bond the entire stock, and to bring it immediately into the market, for consumption.
    “ The stock thus liberated, was rapidly reduced by consumption.
    “ The results of the operation of the corn law were produced immediately after its passing, in the judgment of these witnesses.
    “ The flour by the Nicholas Biddle was placed in the hands of a broker, for sale, on or about the 21st day of July, 1846.
    “ It was found to be sour and heated, and not fit for baking. In consequence of its quality and condition, it was difficult to find purchasers for it.

      “ In consequence of its condition, it would have deteriorated by being held.
    “ In the opinion of persons engaged in the grain trade, it was proper for the defendants to sell at the time they did, and such was the general opinion.
    “ The highest price for flour, after the com law went into effect, was on the 14th July, on which day 22s., duty paid, was obtainable. Prices afterwards declined.
    “ Between the 18th of July and the 10th of August, prices continued to decline. The weather was, and long had been, very fine.
    “The general opinion at and after the sales of the plaintiffs’ flour, was, that the home crop would be good, and the yield large.
    “ Unprecedently great quantities of foreign grain continued to arrive, so that from the 18th day of July to the 10th of August, the stock had reached to 1,500,000 barrels of flour, and to 2,000,000 quarters of wheat, with every, prospect of continued importations.
    “ All the large holders of flour were free sellers; no one was buying on speculation; all persons holding flour were anxious to sell.
    “ The highest price obtainable in Liverpool for the general quality of New Orleans flour from the day of the arrival of the Nicholas Biddle, until the 20th of August, did not exceed 20s. in bond, and 23s. duty paid. On the 3d of August i it was 21s. duty paid; on the 11th August, 21s. to 22s., duty paid; on the 15th and 18th August, 22s. 6d., duty paid; on the 20th August it went to 24s., duty paid, but the duty at the latter date had gone up to 4s. 9|d. sterling, per barrel.
    “Prices had thus advanced but little, and, considering the increase of duties, not at all, at the end of August; it was not until September that a decided advance took place.
    “ According to the course of the trade in Liverpool, a broker was employed to sell the flour; he sold it, on the usual credit, for full market value; the sales were made in good faith—in open market, and not in pursuance of any anterior contract or agreement.
    “ The witnesses on the part of the plaintiffs further expressly proved that the accounts from Ireland of the potato blight, affected the price of Indian com alone; that it did not influence the prices of wheat or flour, which continued, notwithstanding the reports from Ireland, to decline.
    “The improvement that subsequently occurred, was not in any manner attributable to the operation or results of the corn law.
    “It arose from the failure of the potato and other crops in England, and to the unlooked for demand from the Continent.
    “ The extent of the blight was not known so as to affect prices, until the end of August.
    “ The failure of the potato crop in Great Britain was an unusual occurrence; it was quite unlooked for, and could not have been reasonably anticipated. The prevalence of the potato rot generally, became known in Liverpool about the 16th or 20th August.
    “ The defendants read the deposition of John King, of Liverpool, who corroborated in substance the facts as testified to by the plaintiffs’ witnesses; and who more particularly proved, that Dennistoun & Co. held flour of their own, at the time in question,, of a similar description as that of the plaintiffs, and that they-sold their own flour, on the 6th of August, 1846, to the extent of 3,003 barrels, at 20s. per barrel.
    “.The weather was fine at the time of .the sales of the plaintiffs’ flour, and so continued for several days.”

      When the plaintiffs rested, the counsel for the defendants moved for a nonsuit or dismissal of the complaint, upon the grounds—
    1. That under the declaration the plaintiffs cannot recover upon any ground, other than that the defendants sold the flour contrary to the orders therein stated.
    2. That the evidence does not establish that the defendants violated instructions.
    3. That the plaintiffs’ alleged orders or instructions, left the time when the operation of the com law had produced its results to the judgment and discretion of the defendants; and that they were authorized to sell whenever, in their opinion, the operation of the corn law had produced its results; that there is no evidence to establish that the defendants did not exercise a fair and honest judgment, or that the sales were not made according to their best judgment and discretion, in point of time or otherwise.
    4. That the plaintiffs had not given proof as to the operation of the com law nor shown that it had not produced its results at the time of the sales.
    5. That the evidence shows, at most, nothing more than an error of judgment on the part of the defendants, and that they are not responsible therefor, there being no proof that they did not exert a reasonable and honest judgment.
    6. Even if the declaration was sufficient for that purpose, the plaintiffs, on the evidence, are not entitled to recover on the ground of want of skill or care, or of negligence on the part of the defendants.
    7. Nor on the ground of fraud on their part.
    8. That the evidence is not sufficient to maintain the action.
    But the Court denied the motion, and the defendants’ counsel excepted thereto.
    When the evidence was closed, the defendants’ counsel renewed the motion to dismiss the complaint upon each of the grounds before stated.
    The Court denied the motion, and defendants’ counsel excepted thereto.
    The counsel for the defence then requested the Court to charge the jury—

      1. That the letters containing the alleged orders and instructions left the time when the operation of the new law had produced its results to the judgment and discretion of the defendants, and they were authorized to sell whenever, in their opinion honestly formed, the operations of the law had produced its results.
    2. There is no evidence to warrant the jury in finding that the defendants had not exerted an honest .judgment as to the time and circumstances of the sale.
    3. That it was the duty of the plaintiffs to prove that the operation of the corn laws had not produced the results contemplated in their letter.
    4. That even if the evidence tended to show that the defendants had committed an error of judgment, or made a mistake upon the point, whether at the time of the sales the operation of the new law had produced its results, they ate not liable upon the evidence so given.
    5. That upon the evidence the plaintiffs have not shown that the defendants were liable either on the ground—
    1st. Of fraud.
    2d. Of negligence or want of skill
    6. That the alleged orders or instructions are ambiguous; and if the defendants construed them as authorizing them to sell whenever, in their opinion, the operations of the law had produced its results, they are not liable in the absence of fraud or negligence.
    7. That upon the evidence the defendants were entitled to a verdict.
    That if these propositions were not adopted, and the question of damages arose, then the counsel asked the Court to charge the jury.
    1. That the plaintiffs were not entitled to recover upon the evidence more than nominal damages; but if this be refused, then,
    2. That the defendants were authorized to sell, upon the receipt of the letter of the 31st July, 1846, and no greater damage can be assessed against them than the difference between the amount of the sales and the market prices of such flour at the time when the defendants had a right to sell.

      But as to each and every of the requests so made by the counsel for the defendants, the Court refused to charge otherwise or further than is hereinafter stated, and the counsel for the defendants then and there excepted thereto.
    The Court charged the jury as follows:—
    The letters of the 25th and 27th of June, 1846, are the only letters containing instructions from the plaintiffs to the defendants which had been received by the defendants before the 5000 barrels were sold. In determining the question whether in selling this flour at the time they did sell it, they violated their instructions, these two letters, and these two only, are to be considered to ascertain what were the precise instructions under which the defendants were then acting.
    The counsel for the defendants excepted to this part of the charge from the words “these two letters” inclusive.
    The letter of the 25th June forbids any sale by the defendants before they should be advised per Caledonia of the plaintiffs’ wishes, unless 22s. in bond could be obtained. In that event, the defendants were authorized to sell at that price, if, in their judgment, it was to the interest of the plaintiffs to do so.
    The letter of the 27th June confers larger powers on the defendants. Being, in the opinion of the Court, free from the objection that it is fairly susceptible of two interpretations, it is the duty of the Court to construe it and declare its true import and meaning.
    (The counsel for the defendants excepted to that part of the opinion of the Court which declared that the letter last mentioned was free from the objection that it was fairly susceptible of two meanings.)
    It states an apprehension or fear of the plaintiffs, that under the operation of the new law, the first introductions for consumption may tend to continue low prices, as they would probably be large on the passage of the new law.
    It also expressed a belief that after the stocks then in bond should have been reduced by consumption, that an improvement might ensue, and then expressed a desire of the plaintiffs that these parcels might be withheld from the market, until the operation of the new law should have produced its results.
    The obvious meaning of these instructions is, that these parcels were to be withheld from the market, until the operation of the new law should have produced its results in view of the effect produced as well by a reduction of the stock then in bond by consumption, &c., as by the introduction of large quantities into the market by means of the duty being diminished.
    But in connection with this construction, the defendants were also authorized to sell if 22s. in bond was obtainable on arrival) and the defendants thought that the interests of the plaintiffs required a sale on such terms. But the defendants did not sell on such terms, and the question is, whether they sold without waiting until the operation of the law had produced its results in the sense which I have stated; or, to express my views more clearly, without waiting until the defendants in the exercise of fair diligence and in good faith, might have supposed and believed upon the information which the evidence shows they had, that such results had been ascertained.
    (To which opinion and decision of the said Justice from the words “the question is,” &c., the counsel for the defendants did then and there except.)
    The defendants were to judge when the new law should have produced its results within the meaning of the word “results,” as used in that letter.
    They were bound, at all events, to withhold the flour from the market until the stock in bond on the passage of the corn law had been reduced by consumption, &c. Until it had been reduced by consumption, &c., the time would not arrive at which, nor would all the contingencies have happened on which the contemplated results would have been produced, and could be ascertained.
    (To which decision and opinion the counsel for the defendants excepted.)
    But it was both the right and the duty of the defendants, in the exercise of good faith and of proper care and diligence, to determine, after the stock in bond had been introduced into the market, and had been reduced by consumption, &c., whether and when the law had produced its results within the proper meaning of the word “ results,” as I have explained it; and also to determine thereupon when their duty and the interests of the plaintiffs required them to sell, acting under such instructions.

      (To which, opinion and decision the counsel for the defendants excepted.)
    If, in selling at the time they did, they sold before the stock in bond had been introduced into the market, and had been reduced by consumption, &c., they sold before they were authorized to sell, and are liable for the consequences of that act.
    (To which opinion and decision, the counsel for the defendants did then and there except.)
    If they did not sell until after those two events had occurred, they are not liable, unless they failed to exercise that care and diligence which a prudent consignee, acting on his own account and with the knowledge or information which the evidence shows they possessed, would have exercised.
    (To which opinion and decision, from the words “ unless they failed” inclusive, the counsel for the defendants did then and there except.)
    Did they fail to exercise that kind of care or diligence, or disobey their instructions as I have explained them, in selling before the change had occurred in the market, of which they speak in their letter of the 18th of August?
    (To which opinion and decision the counsel for the defendants excepted.)
    If they did not do either, they are not liable. If they did do either, they are liable.
    (To which opinion and decision the counsel for the defendants excepted.)
    After the change in the market had occurred to which that letter refers, it was their duty to act with reference to the interest of the plaintiffs, as they would be affected by that change and the causes which had produced it.
    (To which opinion and decision the counsel for the defendants did then and there except.)
    On the 12th August, the defendants had received the plaintiffs’ letter of the 31st July, which confided the matter of1 selling entirely to the discretion of the defendants.
    The defendants, in order properly to discharge their duty to the plaintiffs under the instructions given to them by the letter of the 31st of July, were bound to exercise good faith and reasonable care and diligence—such care and diligence as a consignee of ordinary care and prudence, not coerced by any necessity to sell and acting on Ms own account, would have exercised under the same circumstances.
    (To which last mentioned instructions the counsel for the defendants did then and there except.)
    It was their duty to act with reference to the information they had as to the quantity in the market, and upon their best judgment as to the extent of the demand that would soon exist for such property, the means of supply according to their best judgment of such means, whether to be derived from the stock then existing, or from the harvest of that season.
    (To wMch opimon and decision the counsel for the defendants did then and there except.)
    Whether the defendants failed to exercise proper care and diligence in selling at the time they did, is a question of fact wMch the jury must determine on the whole evidence.
    (To which opinion and instruction the counsel for the defendants excepted.)
    If they failed to exercise it, then they are liable for that cause. If they did not fail to exercise it, then they are not liable, unless they disobeyed their instructions. If they did neither, the case is at an end, and your verdict must be for the defendants.
    But if they disobeyed their instructions, as I have explained them, or failed to exercise proper care and diligence m selling at the time they did, they are liable, and the plaintiffs are entitled to recover.
    (To which opinion and instruction the counsel for the defendants excepted.)
    If you find for the plaintiffs, the next question is, what amount of damages are the plaintiffs entitled to recover ?
    This depends upon the question at what time might the defendants rightfully and properly have sold under the instructions received on the 12th of August. The defendants received on that day the plaintiffs’ letter of the 81st of July, in which the plaintiffs stated, “ we suppose that ere this the crop of wheat has been ascertained as to its probable yield, and the grain and flour conformed to such result. We therefore ask you to exercise your discretion m effecting sales for us.”
    If the defendants could not have sold before that date, in obedience to the prior instructions under which they were acting, assuming such instructions to have the meaning which the court has stated, then at how early a period after the 12th of August might they, under the facts as you shall find them from the evidence, have sold in the exercise of such care and diligence, and having the same regard to the interests of the plaintiffs as consignees of prudence, acting on their own account, would have and exercise under similar circumstances ?
    (To which charge, opinion and decision the counsel for the defendants excepted.)
    At that time, at whatever date you may be convinced by the evidence it should be fixed, the defendants might sell, and they should be required to account for the wheat at the price which. the evidence shows to have been then its fair market price.
    (To which opinion and decision the counsel for the defendants excepted.)
    Whether the time is the day on which they received the letter of the 31st of July or the day on which any part of the Georgianna flour was sold, or some intermediate day, you must determine on the whole evidence.
    To which opinion and decision, the counsel for the defendants excepted.
    The defendants, in their letter of the 18th of August, expressed a regret at having sold as soon as they did, and placed this regret on the ground, that on the 11th or 12th a great change for the worse took place in the weather, and the potato crop was completely blighted; that a great change had taken place in the last four, five or six days in the corn market all over the country. Hew Orleans flour had risen 2s. per barrel, with every prospect of a farther advance. They also stated that accordingly they held the 3,000 barrels ex “ Georgianna” in the hope of better prices.
    On the 11th September they write that there had been a material advance in the prices of grain and flour since the 3d of September, and that they quoted the Hew Orleans at 26s. a 27s. 6d. duty paid, and stated that that in bond had brought 22s. 6d. a 23s. On the 18th of September they wrote, that they still held the flour per “ Georgianna,” but expected that the favorable position of the market would enable them soon to place it advantageously. On the 3d of October they wrote that they sold 1,000 barrels of it on the 26th of September, at 28s. 6d.
    On the 19th of October they wrote that they sold on the 16th of that month 200 barrels at 28s., and that on the day the letter was dated, the balance being, 1,794 barrels at 29s. 9d.
    You will look at all the evidence bearing upon the question at what time the market prices of flour began to advance, what continued to be the tendency of prices, and what must have been the views of men of prudence, having such information as the defendants had, acting with reasonable care and diligence, as to the time when this flour might have been sold without justly incurring the imputation of having acted without reasonable care and diligence.
    (To which opinion and decision the counsel for the defendants did then and there except.)
    The evidence consists not only of the defendants’ letters and circulars, but also of the depositions of witnesses as to the state of the market, the amount of grain in the market, and the deliberate opinion of persons engaged in the same business, and all other evidence bearing on the question.
    When you shall have fixed that time upon a careful consideration of all the evidence before you, you will determine what price the defendants could have obtained for it then, in selling it in the usual mode, and in the exercise of proper care and diligence.
    (To which opinion and decision the counsel for the defendants did then and there except.)
    With that price you will charge them. You will credit them with advances made and charges paid, and the further expenses that would have accrued and interest on them, to the time when the price of the flour should have been realized by them. From1 the difference you will deduct $153,94, and for the balance then left, with interest, to this date, the plaintiffs are entitled to your verdict if you find they are entitled to recover anything.
    (To which opinion and instructions the counsel for the defendants did then and there except.)
    The counsel for the defendants did also then and there except to the charge, because it did not instruct the jury, in .compliance with the defendants’ request.

      The Court directed the jury to find upon the following questions:
    First.—Did the defendants sell the 5,000 barrels of flour before the stock of grain in bond, at the time the law referred to in the letter of the 27th of June, had been introduced into the market, and had been reduced by consumption ?
    Answer.—Yes.
    Second.—Did the defendants, in selling the flour at the time they did, fail to exercise that care and diligence which prudent consignees, having the information which the defendants then had, and acting on their own account, would exercise ?
    Answer.—Yes.
    And the Court, under the charge and direction aforesaid, left the aforesaid issue, and the evidence so given on the trial thereof, to the said jury. And the jury aforesaid then and there answered both the questions so submitted to them by the said Justice in the affirmative, and gave their'verdict for the plaintiffs for the sum of $7,829,62.
    The defendants moved for a new trial, on the ground, among others, that the verdict was against evidence: The motion was denied, and judgment was entered upon the verdict. From the order denying a new trial and from the judgment the defendants appealed to the General Term.

      F. B. Cutting and M. S. Bidwell, for defendants, the appellants,

      Edwards Pierrepont and James T. Brady, for plaintiffs, and respondents.
   By the Court. Bosworth, J.

The letter of the 25th of June, 1846, instructed the defendants to make no disposition of the 5000 bbls. per “H". Biddle,” or of the 3000 bbls. per “ Georgianna,” until after receiving advice per “ Caledonia,” “ unless 22s. in bond is obtainable,” in which case, the defendants were authorized to sell, if they deemed it for the interest of the plaintiffs to accept that sum.

The letter of the 27th of June, was sent by the Caledonia, and received by the defendants on the 13th of July.

In the letter of the 27th of June, the plaintiffs say: " We fear the first introductions for consumption may tend to continue low prices, as they will probably be large immediately on the passage of the new bill. Believing that after the stocks now in bond shall have been reduced by consumption, &c,, that an improvement may ensue, we express our desire that these parcels may be withheld from the market until the operation of the new law shall have produced its results”—* *. “ Though if 22s. in bond is obtainable on arrival, and you think our interest dictates such sale, please so to dispose of it.”

“ The new law” received the Royal assent on the 27th of June.

The N. Biddle arrived on the 18th of July, and 22s, in bond, was not then attainable.

Twenty-two shillings, in bond, was then equivalent to 25s. duty free, and that price was not then attainable.

The desire expressed in the letter of the 27th of June, was, that in such an event, these parcels should be “ withheld from the market” until the operation of the new law should have produced its results.

The flour was placed in the hands of Mr, Parker, as a broker, on or about the 21st of July. The N. Biddle arrived on the 18th of July. He offered it for sale, in the open market, and so sold it. Consequently it cannot be said to have been withheld from the market a single day, and the presumption is exceedingly strong, that it was put in market as soon as samples of it could be obtained, to be exhibited.

On the 18th of July, the day the flour arrived, the defendants wrote, that in two days they hoped to get a sample of the flour, and have it valued.

Assuming that samples were obtained within the anticipated time, the flour was put in charge of a broker for sale, as soon as he could be furnished with samples.

The discharging of it was commenced about the 27th of July. Discharging it at the rate of 1000 barrels a day, would require five days.

The jury found specially, that the defendants sold “ the 5,000 barrels of flour before the stock of grain, in bond, at the time the law referred to in the letter of the 27th of June, had been introduced into the market, and had been reduced by consumption.”

The jury were charged that the defendants were bound, by their instructions, at all events, to withhold the flour from the market until the stock, in bond, on the passage of the corn law, had been reduced by consumption, &c. Until it had been reduced by consumption, &c., the time would not arrive at which, nor the contingencies have happened on which the contemplated results would have been produced, and could be ascertained.

“ But it was both the right and the duty of the defendants, in the exercise of good faith, and proper care and diligence, to determine, after the stock in bond had been introduced into the market, and had been reduced by consumption, &c., whether, and when the law had produced its results within the proper meaning of the word, ‘results,’ as I have explained it—and also to determine, thereupon, when their duty and the interests of the plaintiffs required them to sell, acting under such instructions.” “ If, in selling at the time they did, they sold before the stock, in bond, had been introduced into the market, and had been reduced by consumption, &c., they sold before they were authorized to sell, and are liable for the consequences of that act.”

“ If they did not sell until after these two events had occurred, they are not liable, unless they failed to exercise that care and diligence which a prudent consignee, acting on his own account, and with the knowledge or information which the evidence shows they possessed, would have exercised.”

Whether the Judge, in submitting the question, in answer to which the jury found the particular facts, above quoted, expressed any views, as to what must be understood by the words, “reduced , by consumption,” &c., the case does not disclose.

Those views, if any were stated, must be deemed to have been satisfactory to both parties. If it is to be assumed, that none were stated, then it is to be observed, that it does not appear that either party desired any particular instruction on that point, and that that matter was treated as one in respect to which the expe-. rience and intelligence of the jury required no aid from the Court.

We think this part of the case was submitted to the jury in a form as favorable to the defendants as they had a right to ask, if there was evidence which warranted any submission of the questions of fact, on which, they passed and rendered their verdict,

The flour was sold on. the 4th, 5th, and 7th of August, at 21s., duty free, except 100 bbls., which were sold at 21s. 6d.

There is evidence enough to justify a jury in finding, that, from the 18th of July, when the flour arrived, until about the middle of August, the prices were rather declining, and that there was no sensible diminution of the stock in the market.

s.d.tos.d.

Defendts’ letter of July 3d, 1854, quotes N. Orleans at 24 -25

ft tt tt “ 18, it tt tt ft 23 -25 tt tt tt Aug. 3, tt tt ft ft 22 -24 u it tt “ 18, ÍÍ tt ft ft 23 -25 it tt tt Sept. 3, it tt ft ft 23.6-25 tt tt it “ 11, tt tt tt tt 26 -27.6 tt tt tt Oct. 3, it it ft tt 28.6-29 tt tt tt “ 19, it ft tt tt 33 -34

John Parke says, the highest price obtainable for New Orleans flour, in bond, between the 15th of June and the end of July, 1846, was 20s. and duty paid, was 28s. The prices were declining a little between the 18th of July and the 10th of August.

John Harnett says, the highest price, between the 15th of June and the 31st of July, 1846, was on the 14th of July; and then, duty paid, it was 22s. The price of such flour, immediately on the passage of the act, duty paid, was between 21s. and 22s. '

John Francis Godwin says, the highest price obtainable for such flour, between the 15th of June and the end of July, 1846, in bond, was 22s., and he thinks this was at the end of June. The prices, from the 18th of July to the 10th of August, were constantly declining.

The jury might very well find that an improvement of prices had not commenced, between the passage of the Corn Law and the sale of the flour; that as soon as samples could be procured, and about the 21st of July, the 5000 bbls. were put into the market, to be sold, by a broker; that the discharging of the flour was not begun till about the 27th of July; and that it was sold about as soon as it was placed in store, the sales being on the 4th, 5th, and 7th of August.

The jury might also have found, on the evidence, and properly too, that there had been no such reduction, by consumption, &c., as to effect an improvement of prices, or as would furnish any basis for judging that such anticipated improvement was not morally certain to result. ,

On the 3d of July over two millions of quarters, of wheat and flour together, had been cleared at the Custom House, at the minimum duty.

Up to the 18th of July, “the.importations of foreign grain and flour had been large, and dealers were disinclined to buy, except for immediate use, and prices were further depressed.”

Mr. Harnett says, the quantity of stock of foreign grain in the United Kingdom, from the 18th of July, 1846,-to the 10th of August following, was unprecedentedly large—never so large before, in his recollection. There was about a million and a half barrels of flour, and about two millions to two millions and a half of wheat in the United Kingdom.

We cannot doubt that there was sufficient evidence of a violation of instructions to call for the submission of that question, as a question of fact, to the jury, and that the jury have determined it against the defendants, on evidence which warrants their verdict.

The jury were also instructed, that, if before the change had occurred in the market, of which the defendants spoke in their letter of the 18th of August, the stock in bond had been introduced into the market and had been reduced by consumption, and thereupon the defendants, in the exercise .of good-faith and proper care and diligence, had determined, or might fairly determine, that the law had produced its results, as the word “results” had been explained to them, they were not liable for selling at the time they did.

The jury were then advised, if the defendants could not rightfully have sold before the change in the market alluded to in that letter had commenced, by what legal rules they should be governed, in determining when the defendants might justifiably have sold.

On the 12th of August, they had received the plaintiffs’ letter of the 31st of July. The jury were instructed, that the defendants, in order to discharge their duty to the plaintiffs, properly, under the instructions given to them by that letter, “ were' bound to exercise good faith and reasonable care and diligence; such care and diligence as a consignee of ordinary care and prudence, not coerced by any necessity to sell, and acting on his own account, would have exercised under such circumstances.”

And if they found against the defendants, on the question of a proper performance of duty, they would look at all the evidence bearing upon the question, at what time the market prices of flour began to advance, what continued to be the tendency of prices, and what must have been the views of men of prudence having such information as the defendants had, acting with reasonable care and diligence, as to the time when the flour might have been sold without justly incurring the imputation of having acted without reasonable care and diligence.

“ When you shall have fixed that time, upon a careful consideration of all the evidence before you, you will determine what price the defendants could have obtained for it then, in selling it in the usual mode, and in the exercise of proper care and diligence.

“ With that price you will charge them,” &c.

It was urged, with much ability, that if the jury should answer the first special question in the affirmative, an affirmative answer to the second would follow as a matter of course—as a mere sequence to the first answer.

We do not think that this conclusion is necessarily correct, nor necessarily a reasonable one.

The jury may not have found, or intended to find, any intentional bad faith on the part of the defendants.

And they may have considered, that although the defendants had concluded that the events had occurred which left them at liberty to judge whether the new law had produced its results, and before selling, had judged that the law had produced its results, and that therefore they could properly sell; yet, even under that favorable view for the defendants, in selling at the time they did, they failed to exercise that care and diligence which prudent consignees, having the information which the defendants then had, and acting on their own account, would have exercised.

Hence they may have been of the opinion that whether that view was taken of the case, or whether the conduct of the defendants, as factors, not absolutely prohibited from selling, but authorized to sell, if they had concluded, on a fair exercise of care and diligence and of their judgment formed on the information which the evidence showed they possessed, • that the interests of the plaintiffs required such a sale as was made—that there was a negligent and careless performance by them of these duties, for the consequences of which they should respond to the plaintiffs.

We think that the case was submitted to the jury as favorably, at least, as the facts of the case justified.

By the letter of the 27th of June, the defendants were not at liberty to sell, oh arrival, unless 22s. in bond could be then obtained—that was equal to 25s. duty free.

The “N. Biddle” cargo reached Liverpool on the 18th of July. That was the day of its arrival there. A sale of it was forbidden unless, on “ arrival,” 25s. duty free could be obtained.

If that price could not then be obtained, the defendants were required to withhold the flour “from the market,” for a period thence to ensue, and until certain contemplated results, particularly stated in the letter of the 27th of June, as anticipated by the plaintiffs, should have been produced, or ascertained.

The defendants, when prohibited from selling on arrival at less than 22s. in bond, could not immediately take the flour out of bond, and sell it for a price which would not be equivalent to 22s. in bond.

But instead of withholding it from the market, it was placed in the hands of a broker to be offered in the market as soon as samples of it could be procured, and before the discharging of the cargo from the vessel had been commenced. Actual sales commenced about, if not quite as soon as the whole cargo was discharged. It was sold, after the defendants,, by their circular accompanying their letter of the 3d of August, or by the letter itself, had informed the plaintiffs that the weather for the then “last two or three days have been unsettled,” and that “Indian corn has been in much better demand, in consequence of the accounts from Ireland of the potato crop being very alarming.”

This sale, the defendants, in their letter of the 18th of August, said they regretted, “ as on the 11th or 12th inst. (August) a great change for the worse took place in the weather, and the potato crop was completely blighted.” The circular forming part of that letter states that “ the bulk of the new wheat will be of poor quality, and in indifferent if not in bad condition, owing to the wet weather which has prevailed during the last fortnight.” New Orleans flour had then advanced “ 2s. per barrel, with every prospect of a further advance,” and they also wrote, “ we accordingly hold your 3,000 barrels, ex ' Greorgianna,’ in the hope of better prices, in which we trust we shall not be disappointed.”

This was written after the plaintiff’s letter of the 31st of July had been received, which confided the matter of selling entirely to the discretion of the defendants. (That was received on the 12th of August.) I say that letter confided the matter of selling entirely to the discretion of the defendants. It was so construed in the charge to the jury.

But that discretion was given on the supposition, as expressed in that letter, that, ere then, the crop of wheat has been ascertained, as to its probable yield, and the grain and flour conformed to such result.”

That supposition was erroneous. The letter of the 3rd of August, written before any flour was sold, stated that causes were then operating, and of so marked a character that they excited public attention, and which by the 12th of August had produced a marked advance in the market, and a general conviction of a still further advance, in consequence of their effects on the quality as well as probable yield of the crop of wheat of that season.

These facts, are quite conclusive to show, that the instructions to withhold the 5,000 bbls. from the market, were disobeyed, or entirely disregarded, and that no attention was paid to the limitation as to price, which the defendants were required to obtain, as a condition to the right to sell, and that the sale was made while prices had a downward tendency, and when they had reached the lowest point, while the flour sent by the “ Greorgianna,” and covered by the same instructions, was withheld from the market.

Why one cargo should have been immediately put in the market, and sold, and the other withheld, and why the larger instead of the smaller cargo should have been sold, it is difficult to conjecture, unless it was the intention of the defendants, in placing samples in the hands of a broker, merely to have the quality and value ascertained, while the broker, on the contrary, acted on the assumption and belief that he was authorized and expected to sell, and having sold, the defendants deemed it best or found it necessary, to complete the sale.

The evidence that, the defendants disobeyed the instructions which they received from the plaintiffs, seems to us to be very strong, and the conclusion most favorable to the defendants is, that such disobedience resulted from a want of, or a failure, on their part, to exercise, that reasonable care and diligence which was essential to a proper performance of their duty, as factors.

The defendants also complain of the construction given at the trial, to the letter of the 27th of June.

The language of that letter is: “We fear the first introductions for consumption may tend to continue low prices, as they will, probably, be large, immediately on the passage of the new bill. Believing that after the stocks, now in bond, shall have been reduced by consumption, &c., that an improvement may ensue, we would express our desire that these parcels should be withheld from the market until the operation of the new law shah have produced its results.”

The plaintiffs, doubtless, expected that the importations would be large, in anticipation of the passage of the new law, and that they would be released from bond, by the owners or consignees, availing themselves of the opportunity of releasing it, by paying the minimum duty, immediately on the passage of the law.

Parke testifies that, “ the stock in bond, previous to the passing of the Corn Law, was large, in consequence of its accumulating, in anticipation of the reduction of duty.”

Harnett testifies to the same thing.

The circular to defendants’ letter of the 3d of July, states that “ the whole stock of foreign grain and flour in this port, and throughout the kingdom, upwards of two millions of quarters of wheat and flour together, has been cleared, at the Custom House, at the minimum duty, viz. 2s. 5d.”

The charge was, that “ the obvious meaning of these instructions is, that these parcels were to be withheld from the market, until the operation of the new law should have produced its results in view of the effect produced, as well by a reduction of the stock then in bond by consumption, &c., as by the introduction of large quantities into the market by means of the duty being diminished."

“ The question is whether they sold without waiting until the operation of the new law had produced its results, in the sense which I have stated; or to express my views more clearly, without waiting, until the defendants in the exercise of fair diligence and good faith might have supposed and believed upon the information which the evidence shows they had, that such results had been ascertained.”

“ The defendants were to judge, when the new law should have produced its results, within the meaning of the word ' results,’ as used in that letter.

They were bound, at all events, to withhold the flour from the market, until the stock in bond had been reduced by consumption,” &c.

“ If, in selling at the time they did, they sold before the stock in bond had been introduced into the market, and had been reduced by consumption, &c., they sold before they were authorized to sell, and are liable for the consequences.

“ If they did not sell until after these two events had occurred, they are not liable, unless they failed to exercise that care,” &c.

There can be no pretence, as we think, that the jury could have understood from this charge, that the defendants were bound to wait, before exercising their judgment, whether the law had produced its results, until importations should have been introduced into the market, other than those in bond, at the time of its passage.

They were expressly charged, that if the defendants did not sell before the stock in bond had been introduced into the market, and had been reduced by consumption, &c.,” “they were not liable,” unless guilty of a neglect of duty, by reason of their failing to exercise proper care and diligence.

It is also objected, in the points, that “this part of the charge is vague and indefinite, and, in effect, left it to the jury, to fill in under the ' &c.,’ whatever their fancy might have suggested.”

We think that the use, in the charge, of these words from the letter, presented the case more favorably for the defendants than it would have been by the omission of the “ &c.”

The result which it was anticipated would improve prices, was a “reduction.” of the quantity in bond, after it had been introduced into the market, by its consumption, or other causes, in addition, which should prevent its being capable of being sold in the market for human food.

Whatever causes, other than actual consumption, under the evidence, the jury might think had produced such results, and which they might fill in under the “ &c.,” was beneficial to the defendants, in the process of finding an early day, at which they would be justified in selling.

But the charge was not excepted to, at the trial, on account oi the use of the “ &c.,” or on account of its vagueness.

The defendants object that the pleadings do not warrant a recovery, either on the ground of fraud, or of negligence, or of a want of skill.

The pleadings were drawn before the Code was enacted.

The act of April 11th, 1849, applied sections 169 to 176, inclusive, of the Code, to future proceedings in civil actions, which were pending on the 1st of July, 1848. (Laws of 1849, p. 705, § 2, Sub. 1.)

By § 169, no variance between the allegation in a declaration, and the proof, can be deemed material, unless it shall have actually misled the defendant, to his prejudice, in maintaining his defence.

If a defendant alleges he has been misled, he must prove that fact to the satisfaction of the Court, and in what respect he has been misled. (id.)—Catlin v. Gunter, 1 Kern. 368,373; Harmony v. Bingham, 1 Duer, 209-210.

The 2d count states, the receipt of the flour, to be sold by the defendants, as factors and agents; their duty to obey orders, and their promise to perform their duty as factors; a disregard of their promise; and that, “ contriving and intending to deceive and defraud the plaintiffs in this behalf, and contrary to their duty as factors, and contrary to the orders of the said plaintiffs, in this behalf, given to and received by the defendants, and carelessly, and negligently, and inattentively, sold the said merchandise prematurely, and for low and insufficient prices, and for less than they might and could have obtained therefor, if they had well, faithfully, and diligently performed and fulfilled their duty, as factors of the plaintiffs in this behalf; and thereby the plaintiffs lost the difference in. price which they would have received, if the defendants had properly conducted themselves in this behalf, which difference in price amounts to a large sum of money, to wit, twenty thousand dollars.”

The breach, of the duty and promise stated, is alleged, in this count, to consist of the careless, negligent, and inattentive manner in which the defendants acted, in selling the flour. It is also alleged, that damage ensued, to which the plaintiffs would not have been subjected, if the defendants had faithfully and diligently performed their duty, as factors of the plaintiffs in this behalf.

We think that this is, in substance, the matter submitted to the jury, by the second question, which they answered in writing.

Even if the first special instruction, which the defendants requested should be given to the jury, was proper in the absolute and unqualified form in which it was stated, it is not easy to perceive why the second special question might not properly have been submitted to the jury, if there was evidence to justify the submission of the inquiry it embraced, as a question of fact.

We do not think that any error was committed, to the prejudice of the defendants, either in the charge to the jury, or in the admission of evidence, and that the judgment should be affirmed.