Griffin v. Keith

Daly, J. — The witness, Gleason, proved that the defendant acknowledged that he had the goods enumerated in the bill that was given in evidence. This rendered it unnecessary to prove that they had been delivered. He also proved that the prices charged in the bill were fair and reasonable. This was sufficient to entitle the plaintiff to maintain the action, and the motion for a dismissal of the complaint was properly denied. It appeared that such portion of the goods as were not sold were to be returned, and that the plaintiff demanded the return of such as were not sold, and that Keith promised to return [60] them by the 1st of February, 1855 ; but it did not appear that any part of them had been returned: presumptively, therefore, the defendant, after the request made of him, was liable for the whole amount he had received. There was nothing to show that the defendant’s engagement was collateral, and that his brother was the principal debtor. The goods were charged, upon the plaintiff’s books, to the defendant, except the item of November 4th ($45.18), which the justice appears to have disallowed; and the plaintiff swore that he never looked to Bezar Keith for payment, but to the defendant, and that he sold the goods on the credit and responsibility of the defendant; in corroboration of which, Gleason swore that the plaintiff said to the defendant, in the witness’s presence, in a conversation respecting the gauges, which the defendant’s brother had got: “ You know it was on your own responsibility and that in the early part of January, 1855, the defendant admitted to the plaintiff, that the bill, which was made out, charging him with the goods, was correct. One witness swore, that the plaintiff said, when he was making arrangements for the sale of the gauges, that B. Keith was going to sell them as his agent, and that defendant would be responsible for them ; and another witness testified, that he had heard the plaintiff say that he had a man selling these gauges. But this was not necessarily inconsistent with the truth of what had been sworn to by the other witnesses. It might be to the interest of all parties, that B. Keith should offer these articles for sale, as the accredited agent of the plaintiff. The conditions of sale, that they were not to be paid for' unless sold, but if unsold were to be returned to the plaintiff, the whole or any part of them, rendered him in a certain sense but a kind of agent for their sale. The plaintiff, therefore, might very well say that B. Keith was to sell them as his agent, or that he had a man selling these gauges, as he had agreed, if they were not sold, to take them back again. .lie demanded their return or the return of what had not been sold, and the suit was not commenced until a month after the time when the defendant had promised to return what had not been sold. The defendant [61] Rad named his own time, and the plaintiff, after waiting a month beyond that time, was entitled to treat the sale as absolute, and insist upon payment. The judgment should be affirmed.