Gindre v. Kean. agreement is inferable, that Benjamin was bound to remit to Gindre & Co., at fixed times, without regard to payments to him or the terms of the sales effected by him, and that thus he was primarily liable for the purchase price whenever a sale was made by him. Hence, it is further urged, Gindre & Co. must share with other creditors of Benjamin in the distribution of the assigned estate, and have no rights in the proceeds of the sales of their consigned goods which are superior to those of general creditors. The inquiry now is pertinent: Was it Benjamin's duty to remit before payment of the purchase price to him, or before the credits allowed upon sales effected by him had expired and the purchasers were in default? Turning to Gindre & Co.'s proposition of April 24, 1889, they say to Benjamin: "You will charge us with the customary discount of the market, which varies from five to six per cent., according to the values given, and count that you will only charge us the exact value given." I do not regard it as by any means clear that Gindre & Co. thereby intended, or that Benjamin thereby understood, or was justified in understanding, that it was obligatory upon him, even if so required by Gindre & Co., to discount the account sales and remit accordingly. But, however that may be, it is indisputable that the agency created by the proposition and acceptance was revocable at the pleasure of Gindre & Co. They could, therefore, at any time, with Benjamin's approval, alter the terms of the agency, and, as altered, continue it. On January 22, 1892, Gindre. & Co. wrote to Benjamin: "In future we do not wish to pay you any interest. In consequence, please do not make any remittances to us except at maturity of account of sales, only for the sum that you find due us at the time. We will refuse all remittances made under other conditions," to which Benjamin replied, on February 5, following: “I understand you to say that you only want a remittance when there is that amount to your credit, Gindre v. Kean. and that you do not want the account of sales discounted. I had contemplated sending you two to three thousand pounds sterling to-day, which I regret not doing on account of your letter not allowing it." Here, then, we have Gindre & Co.'s explicit repudiation of Benjamin's obligation to remit except as factor for moneys actually received upon sales for his principals' account, and for such further amounts as would accrue from him as surety under his del credere agreement, and his acquiescence therein. Any inference, therefore, which is sought to be drawn from the course of business, and to the effect that Benjamin became primarily liable for the purchase price upon a sale by him, is plainly repugnant to the facts in evidence. Thus the case at bar is not only destitute of all evidence from which it may be made to appear, either expressly or inferentially, that Gindre & Co. did not intend to preserve their rights as principals against Benjamin as their factor and against the purchasers of the consigned goods, but the evidence is plainly inconsistent with any such claim. The principles which should control the decision of the case at bar, and which are to be deduced from the adjudged cases, are that whenever the agreement of the alleged principal and factor, whatever they may style themselves or their relation, and whether the agreement be express or only inferable from the course of business, clearly manifests an intention that the alleged factor shall become definitively and primarily liable upon a sale for the purchase price of the goods consigned, it is in legal effect a sale by the alleged principal to the alleged factor, out of which arises the ordinary relation of creditor and debtor. The liability of the alleged factor under such an agreement is repugnant to that of a mere agent whose duty to remit is commensurate only with the amount of the money which he has actually received upon a sale for his principals account. Ex parte White, Re Nevill (L. R. 6 Ch. App. 397; aff'd Gindre v. Kean. by the House of Lords sub. nom. Towle v. White, 21 W. R. 465; also cited at length in the text of Benjamin on Sales, § 598), relied upon by defendant's counsel is, upon the principle stated, distinguishable from the case at bar. There it appeared that the consignee was permitted to manipulate the goods consigned to suit the purposes of his trade; that he was to be liable upon a sale by him at fixed rates, irrespective of the prices at which he had sold; and that he was furthermore to pay at fixed times without reference to the fact of payment to him or the terms upon which the sales were effected by him. Lord Justice James remarked: "If he (Nevill) was entitled to alter them, to manipulate them, to sell them at any price he saw fit after such manipulation, and was still liable only to pay for them at a price fixed beforehand without any reference to the price at which he had sold them, or to anything else, then the fact that he had sold them in a particular month, it seems to me impossible to say that the produce of the goods so sold was the money of the consignors, or that the relation of vendor and purchaser existed between Towle & Co. (consignors), and the different persons to whom Nevill (consignee) sold the goods. *** It appears to me, therefore, to be the necessary conclusion that as regards these transactions Mr. Nevill was in the position of a person having goods on sale or return.'" Lord Justice Mellish was of the same opinion, observing: "But if the consignee is at liberty to sell at any price he likes and receive payment at any time he likes, but is to be bound if he sells the goods to pay the consignor for them at a fixed rate and at a fixed time, in my opinion, whatever the parties may think, their relation is not that of principal and agent, * and in point of law the alleged agent in such a case is making on his own account a purchase from his alleged principal, and is again reselling." * * Ex parte White (Re Nevill) was followed and approved in Nutter v. Wheeler (2 Lowell, Mass. U. S. Cir. Ct. Gindre v. Kean. 346), and Re Linforth (4 Sawyer, U. S. Cir. Ct. 370), but in both cases the facts resembled those in the principal case and were unlike those in the case at bar. In Nutter 7. Wheeler, it appeared by the course of business between the alleged principal and agent that the defendants were in the habit of sending goods manufactured by them to plaintiff's assignor for sale upon such terms and at such prices as the latter saw fit, he to remit to them, whenever a sale was made at specified rates. It was held that the facts constituted a sale to plaintiff's assignor, and that the ownership of the proceeds of the sale by him passed to the assignee of the insolvent agent. The court stated that by the terms of the agency the consignee may be the agent of the consignor until the goods are sold, and when they are sold become, as between him and the consignor, the purchaser and principal debtor for the goods sold. In Re Linforth, A had agreed to supply B with goods less a certain discount. B was to pay all storage and other charges. He was also required to account for and pay over the proceeds of the sales made by him. once in every three months, and at the end of the year if A should so require, to pay for all goods then remaining unsold. It was held that the parties were vendor and purchaser, and that B having become bankrupt, A could not recover of his assignees the proceeds of sales effected by B before his bankruptcy which had come into the hands of his assignees. Plaintiffs are entitled to judgment for the relief demanded, with costs. Estate of Hurd. ESTATE OF HURD. Kings County Surrogate's Court; December, 1893. 1. Reference.] A referee appointed by the surrogate's court in an executor's accounting is not confined to an action in order to recover his fees, if he is unable to collect them; but upon his application the surrogate's court may, in the exercise of its authority over the executor as an officer of court holding a fund subject to its control, make an order directing the executor to pay the fees forthwith. Following Attorney General v. Continental Life Ins. Co., 93 N. Y.45; and distinguishing Geib v. Topping, 83 Id. 46, 2. The same. If after the reference a stipulation between the parties, made before the reference, that the referee should be allowed a fair compensation, but not fixing the amount, is repudiated, the referee can only be allowed the statutory compensation. Application by a referee in an executor's accounting for an order taxing his fees and directing the executor to pay the same. Accounting of Matthew H. Ellis as executor, etc., of Georgiana Hurd, deceased. The facts are fully stated in the opinion. ABBOTT, S.-The executor filed his account in this proceeding, May 5, 1892. Objections thereto were filed and a reference was ordered June 27, 1892. There were several hearings before the referee, and about two hundred pages of testimony taken. The reference was closed and the referee prepared his report, which was unsatisfactory to all parties, and no one would take it up. On January 11, 1893, the referee filed his report in this court, within sixty days from the final submission of the case. Nearly a year has elapsed since |