Van Alen v. Vanderpool

Per Curiam. The testimony in the case does nqt warrant the ground taken at the trial, that here was [72] a sale of the wheat to three of the defendants. The noilsuit was granted on the assumption that there had been a sa]e three only of the defendants, and that this eviJ dence did not correspond with the contract declared on. This may be the import of the parol testimony, but the receipts given by, or in behalf of all the defendants, subsequent to the loose conversation alluded to by the witnesses, are a higher species of evidence, and ought to control the other. ^According to the receipts, the wheat was received into the store, as the wheat o -the plaintiffs ; and we must conclude that it was taken upon freight, to be carried to New-York, and sold by the defendants, as agents or factors, for the plaintiffs. The cause then ought to have been submitted to the jury, on the point, whether the conversation between one of the plaintiffs and one of the defendants, when one load of the wheat was delivered, amounted to an instruction to the defendants not to sell on credit. Such a special instruction was necessary; for otherwise, the agent selling on a usual credit, to a person known and approved in the market, would not be responsible for the solvency of the vendee. The defendants received the wheat to carry to New-York and sell, as agents and factors to the plaintiffs; and whenever persons are so employed, it is to be understood, without special instructions to the contrary, that they are employed to do it in the usual manner; and consequently, they may sell'on credit without incurring risk, provided they do not unreasonably extend the term of credit, and provided they make use of due diligence to ascertain the solvency of the purchaser. The authority of a factor to sell on credit, is not to be disputed. (Scott v. Surman, Willes’s Rep. 406. 6 Term Rep. 12. Russel v. Hankey. 1 Camp. N. P. 258.) Whether the evidence showed Sr special instruction to sell for cash, was the point that should have gone to the jury. After laying down the [73] general rule on the subject, the court do not mean to give any opinion on the evidence, as to that point, in this case; but they wish to leave it unbiassed for a future ^r*a^* We are, accordingly, of opinion, that a new trial be awarded, with costs to abide the event of the suit. New trial granted.