The defendants insisted on the trial that the responsibility of a factor upon a del credere commission could not be assumed by parol, but that such a contract fell within the terms and meaning of the statute of frauds. (2 R.S., 135, § 2, sub. 2.) The precise point was decided against the views of the defendants, inWolff v. Koppel (2 Denio, 368), by the late court for the correction of errors, affirming the decision of the supreme court in the same case.
(5 Hill, 458.) The doctrine of the case in the supreme court, and the reasoning of Mr. J. Cowen, in the opinion of the court, are approved and expressly adopted *Page 269 by the court of exchequer, in Couturier v. Hastie (8 Wels.,H. G., 40), notwithstanding that whatever doubt existed on the point had grown out of the decision in Morris v. Cleasby (4M. S., 566). The point is settled by these cases, in accordance with convenience, and it ought not to be reëxamined. The judgment should be affirmed.
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