Gindre v. Kean. Undoubtedly, the commission merchant was bound to exercise reasonable care and prudence in making credits and in selling to responsible parties only; but it appears from the proof submitted by him, that the purchasers were of good credit and reputation at the time of the sales. It appears also from the statements before me, that it was intended that sales might be made on credit and that the commission merchant was not restricted to cash sales. It was held in Van Alen v. Vanderpool (6 Johns. 69), and in other cases, that a factor may sell on credit, without incurring risk, if it be the usage of trade at the place, and he be not restrained by his instructions, and does not unreasonably extend the term of credit; and provided he uses due diligence to ascertain the solvency of the purchaser. Here the factor was authorized by the principal to sell on credit. There is no proof of any delinquency on his part in giving credit to the purchasers. He was deceived by fraud. I am of opinion, that the goods recovered by him from Weil, Dreyfuss & Co., on the claim that they were obtained from him by fraud, are still the property of the principal, and have been properly charged to its account as goods of the mill still unsold. Of course the commission merchant must account for them when they are afterwards sold. Award accordingly. GINDRE v. KEAN. N. Y. Common Pleas, Equity Term; March, 1894. Factors.] The fact that a factor is liable as surety under a del credere agreement (there being simply the relation of principal and factor, and nothing in the agreement or course of dealings between the parties to show that the factor was liable for a Gindre v. Kean. fixed price without any reference to the price at which he should sell the goods, or that he was accountable for the purchase price before the expiration of the credit given purchasers), does not deprive his principal of the right to insist upon the performance of his duty as factor; and the principal is entitled to recover in full the proceeds of goods, sold by the factor which have been collected by the factor's assignee for the benefit of creditors. Trial by court without a jury. Action by Claude Gindre and others, against Cyrus V. Kean as assignee for the benefit of creditors of Edward M. Benjamin, to recover certain money collected by defendant, which was the proceeds of goods sold by defendant's assignor, and which had been consigned to him to sell by the plaintiff under an agreement that defendant's assignor should receive a commission upon the sales, and that he,, on his part, should guarantee the payment of the price of goods which he might sell. The further facts are fully stated in the opinion. Stephen Van Wyck, for plaintiffs. . Hampden Dougherty, for defendant. BISCHOFF, J.-Pursuant to Gindre & Co.'s proposition. of April 24, 1889, and accepted by Benjamin on May 7th following, the former were to consign the silks of their manufacture for sale, the latter to receive a commission of six per cent. upon the sales for guarantee, storage, insurance and all other expenses. That this constituted the parties principal and factor respectively is clear and conceded. Gindre & Co.'s right, therefore, to repossess themselves of the goods consigned and remaining unsold at the time of Benjamin's assignment, and to insist upon payment to themselves of all moneys remaining at the time unpaid from the purchasers upon all sales effected by Gindre v. Kean, Benjamin for their account before his assignment, and to recover from Benjamin's assignee the specific moneys received by him from the purchasers on account of such sales, is indisputable upon abundant authority (Kent's Commentaries, Lacy's Ed., Vol. II., p. 623, etc.; Baker v. New York National Exchange Bank, 100 N. Y. 31; Wallace v. Castle, 14 Hun, 106; Converseville Co. v. Chambersburg Woolen Co. Id. 609; Donovan v. Cornell, 3 How. Pr. N. S. 525; Springville Mfg. Co. v. Lincoln, 16 Daly, 318). It remains, therefore, to consider whether, by the course of dealing adopted by the parties, they had so far modified or changed their original agreement that their relation upon a sale of the consigned goods was divested of its fiduciary character and converted into the ordinary one of creditors and debtor (National Butchers' & Drovers' Bank v. Hubbell, 117 N. Y. 384). Benjamin's del credere liability was wholly independent of any duty which devolved upon him as factor. As factor merely it was his duty upon receipt of moneys for his principals' account to remit the specific moneys paid him, and, until remittance, to keep the moneys distinct and separate and apart from his own. Before payment to him his principals could at any time elect to revoke his agency, and insist upon payment from the purchasers to themselves. That he was answerable for the purchase price under his del credere agreement in the event of the purchaser's default in payment did not operate to deprive his principals of the right to insist upon performance of his duty as factor. Notwithstanding the del credere agreement the purchaser continued to be the principals' primary debtor, the factor's liability under such an agree ment being that of a surety only. The principals could, therefore, pursue their remedies against the purchaser while the purchase price remained unpaid to the factor, or against the factor for the moneys paid him for their account, and were not confined to the del credere agreement, if remittance of the purchase price was omitted Gindre v. Kean. (Kent's Commentaries, Lacy's Ed., Vol. II., p. 624; Story on Agency, § 33, n. 4; Thompson v. Perkins, 3 Mason, 232; Springville Mfg. Co. v. Lincoln, 16 Daly, 318, 324). It is contended for defendant that the course of dealing between Gindre & Co. and Benjamin had so far altered their original agreement that upon a sale of the consigned goods by Benjamin he became liable to his principals at once for payment at fixed times and at fixed prices without regard to the credits upon which or the prices at which the sales were made, and that under this arrangement Benjamin was constituted the primary debtor. Upon the evidence, however, I am unable to agree with the learned counsel for the defendant that Benjamin was accountable to Gindre & Co., upon a sale by him, at prices other than those at which the consigned goods were sold. It was claimed for defendant that one Molson, an employee of Benjamin, was authorized by Gindre & Co., whenever a sale was about to be effected, to determine the prices to be returned and accounted for by Benjamin to Gindre & Co., and that the prices so determined in many instances differed from the prices at which Benjamin had actually sold, sometimes being greater and at other times less; and testimony was adduced which tends to show that Molson had assumed to act as stated. The evidence is, however, insufficient to show that Gindre & Co. had invested Molson with such authority, or that they knew of any difference in the prices obtained and returned by Benjamin, and so that Gindre & Co. had ratified Molson's acts or acquiesced in his exercise of authority. The acts and declarations of an assumed agent alone are incompetent to bind the alleged principal, and in the absence of proper evidence I cannot assume that in the course of his business dealings with Gindre & Co. Benjamin, either with or without the knowledge or sanction of his principals, acted repugnantly to the duty which is ordinarily devolved upon a factor or other agent, namely to account to his principals for the money actu Gindre v. Kean. ally received or agreed to be paid him upon a sale of the consigned goods. I shall therefore dismiss from my further consideration in the determination of the question litigated in this action the alleged fact that Benjamin was accountable to Gindre & Co. whenever a sale of the consigned goods was effected by him, at prices fixed between them either before or contemporaneously with the sale, whether or not those were the prices actually realized. It now remains to consider whether Benjamin was accountable to Gindre & Co. for the purchase price of the goods sold in advance of actual payment by the purchaser to him or before expiration of the credit allowed upon the sale. It appears that in the course of their business, Benjamin kept and from time to time rendered to Gindre & Co. both an account sales and an account current. The account sales was rendered at least once in every month, and as often as Benjamin thought the aggregate amount of the sales made warranted it. This account sales matured thirty days after the expiration of the particular month in which the several sales were made. Upon maturity of the account sales Benjamin remitted to Gindre & Co. the moneys actually received by him upon sales made by him and such for which his liability had become definitive under his del credere agreement upon the purchaser's default, less the amount of his commissions, and for some time also he remitted for such of the sales in which the credits allowed to purchasers had not yet expired and the purchase prices had not yet been paid, deducting for these, besides his commissions, a discount for the advances. The remittances were debited by Benjamin to Gindre & Co. in the account current, and they were credited therein for the purchase prices paid to Benjamin and for such moneys as accrued from him under his del credere agreement for the purchase prices remaining unpaid at the expiration of the credits allowed. Because of the anticipatory remittances, it is urged the |