Wadsworth v. Gay

Morton, J. This is an action for goods sold and delivered. One of the positions taken by the defendant at the trial was that the goods were consigned to him, and therefore that the action could not be maintained in this form. There was no evidence which would justify the jury in finding that the goods in question were consigned to the defendant as a factor in the usual course of business. If we take the view of the evidence most favorable to him, it shows that the goods were received by him under an arrangement that he was to take and [53] n&e such as he needed for his own purposes, and sell the remainder as the agent of the plaintiffs. If such was the arrangement, undoubtedly the goods continued 'ra be the property of the plaintiffs so long as they remained in the defendant’s hands unused or undisposed of; and if he had sold them to others, the proper action would be an action to recover their proceeds. In neither case could an action for goods sold and delivered be maintained, because there is no transfer to the defendant of the property in the goods, and thus one of the essential elements of a sale is wanting. But it was an undisputed fact in this case that the defendant took and used for his own purposes all the goods which were sent to him. He had the option to take the goods himself, and when he exercised this option and appropriated them to his own use, the property in them passed to him, and a completed sale was effected. He appropriated the goods rightfully under and by virtue of his contract with the plaintiffs, and the proper if not the only remedy for them is an action for goods sold and delivered. But if we adopt the view claimed by the defendant, and treat the case as one where the goods were sent to the defendant as a consignee, and he, acting as factor, sold them to himself, the result is the same. A consignor may maintain an action in his own name, against a purchaser, for goods sold by a factor. Barry v. Page, 10 Gray, 398. A factor cannot properly sell to himself, and, if he attempts to do so, the principal may repudiate the transaction. But he may, if he so elects, treat it as a valid sale, and maintain an action for goods sold against the factor as purchaser. In any aspect of the case, we are therefore of opinion that the presiding judge correctly ruled that this action could be maintained, and that the instructions requested by the defendant were not applicable to the facts proved. The defendant offered evidence tending to show that he had made certain disbursements for wharfage and storage of the goods, and claimed that such disbursements should be deducted from the value of the goods, in this action. We think the court correctly ruled that this could not be done under the pleadings. In an action for goods sold and delivered [54] the plaintiffs are entitled to recover the agreed price, or, if no price is agreed, the fair value of the goods. If the defendant has any claim for services rendered or money expended, on account of the goods, his proper remedy is a declaration in set-off. It is essential to the rights of the plaintiffs that they should have notice by the pleadings of any such claim, in order to be prepared to meet it. Exceptions overruled.