
    [Philadelphia,
    Saturday, December 21, 1811.]
    *Hazard and Cabot against Van Amringe.
    A sold goods to B, payable at sixty days with interest thereafter, to be paid when taken away, not to exceed ninety days. B did not take the goods away in the time prescribed. Afterwards A, who was a commission merchant, agreed to take the goods on sale for B, and to credit him with the proceeds, and B engaged to make up any loss which might accrue on the sales.
    
      Held that A was not bound to sell at all events, but only to use reasonable exertions, and after these had failed, and notice given to B to pay for the goods and take them away. A might maintain an action for the price; but the notice to B was indispensable.
    This was an action of assumpsit, in which the plaintiffs declared upon an indebitatus assumpsit for goods sold and delivered, and for goods bargained and sold, and upon a quantum valebant for the same. Pleas, non assumpsit and payment. Upon the trial before Brackenrid&e J. at Nisi Prius in November last, the plaintiffs obtained a verdict for their full demand ; and now upon a motion by the defendant for a new trial, His Honor reported the case to be this:
    The plaintiffs in June 1808 received a consignment from B. and II. Eosdick & Co. of Boston, of 18 qr. chests of young hyson tea, 11 of which were of the importation of 1808, and 7 of 1807. On the 27th of November 1808 they sold 4 quarter chests to Gilbert and Wessel, and on the 30th they sold the residue to the defendant upon the terms mentioned in the following entry in their books. “ Sold L. V. Amringe the remainder of 'Fosdick’s Y. Hyson Tea, 14 chests at 115 cents, 60 days, and interest after, to be paid when taken away, not to exceed 90 days.” The teas were bought in a season of speculation, and the price falling shortly after, they were not taken away within the time limited. On the 24th May 1809 the defendant signed the following memorandum: “ Whereas I purchased from Hazard and Cabot on the 30th November 1808, 14 chests Young Hyson Tea, and they have agreed to take the said 14 chests on sale for my account, and credit me with the proceeds, I hereby engage to make up any loss which may accrue on the said Tea, that is, the difference between their bill, and the net proceeds.” Subsequent to this the defendant made several pretexts to avoid payment. He insisted that he had bought only of the importation of 1808 ; then that a part of the teas he had bought had been delivered to Gilbert and Wessel, and their teas left for him ; and finally, the teas remaining unsold in the store of the plaintiffs, although they had been there exposed for sale with other goods which they had received to sell upon commission, they brought the present action to July *term 1810. The plaintiffs offered to prove that before the commencement of the suit, namely on the 6th of March 1810, they had informed the defendant by letter of their inability to sell the tea, and requested him to comply with the terms of his contract, and remove it; but notice not having been given to produce the original letter, the court refused the evidence, his Honor saying that he would not nonsuit the plaintiffs for want of notice, but if the verdict should be for them, the defendant should have an opportunity of moving the question of notice in banc.
    
      Levy for the defendant moved for a new trial.
    He contended that the verdict was against law and evidence. 1. Because the first contract was executory, did not pass the property to the defendant, nor vest in the plaintiffs a right to the price until tender or delivery of the goods. 2. Because, if the contract did change the property, the memorandum of May 1809 rescinded it, and obliged the plaintiffs to sell at all events, and the defendant to pay only the difference between the original bill and the sales. 3. Because if the original contract was not rescinded, at least it was so qualified by the memorandum in May, that the plaintiffs could not maintain their suit, without evidence of an exertion to sell, and a tender of the teas to the defendant before the commencement of the suit.
    
      1. The contract of November 1808 was in the nature of mutual conditions to be performed at the same time. The payment was to be made upon delivery, and the delivery upon payment. If the plaintiffs desired to enforce payment, they should have tendered delivery. Kingston v. Preston cited in Jones v. Barkley, Doug. 664; Jackson v. Clark, 8 Johns. 424 ; Pordage v. Cole, 1 Saund. 320 c note. If neither money be paid, nor the goods delivered, nor tender made, it is no contract, and the owner may dispose of the goods as he pleases. 4 Black. Com. 447.
    2. The second agreement being contrary to the first, rescinded it. It might have been rescinded by parol merely. Legal v. Miller, 2 Ves. 299; Pitcairn v. Ogbourne, 2 Ves. 376.The plaintiffs *bound themselves absolutely to sell, and to call upon the defendant for the difference merely ; and they ought to have resorted to a public sale at auction if necessary.
    3. At all events the plaintiff’s were bound to use reasonable exertions to sell, of which there was no evidence to the juiy; and upon the failure of these, they should have tendered the teas to the defendant, to extinguish the new agreement. They certainly bound themselves to endeavor to sell, by accepting the new agreement. They therefore could not have resorted to the defendant immediately, nor until those exertions were made; and after they were made, the defendant was entitled to notice, that he might either have taken the teas away, or directed a public sale at once.
    
      Ghauncey contra.
    1. The authorities under the first ground of the defendant are wholly inapplicable. The contract of the 30th of November was an absolute sale, accompanied with a delivery; but the plaintiff was to have a lien on the goods until payment, and the defendant had a credit of 60 days, without interest, and 90 days with interest if he chose. In such a case the vendee has his action for the price, without delivering the goods; and if he refuses to deliver them upon request, it ought to be shown on the other side. If the vendor is ready to deliver, where there is such a promise by the vendee, it is all that the law requires on his part. 1 Bac. Abr. 373. Bailment C. Warren v. Perkins, Palmer 223.
    2. The agreement of May, admits the delivery, confirms the sale, adopts its terms, and merely introduces an agreement by the plaintiffs to take the goods on sale, and a promise by the defendant that a sale should not prejudice their right to recover the difference from him. The object of the agreement was exclusively to enable the plaintiffs to raise the money for themselves, by a sale, and to guard against any objection by the defendant in case of loss. It was intended merely as an authority to sell. They were to sell, according to the course of their business ; that is, in their store as commission merchants. They had no authority to sell at auction ; and they were under no more obligation to sell at all events, than any commission merchants who receive goods to sell *upon commission. Upon a failure to sell within a reasonable time, their duty was discbarged, and the case stood upon its original footing.
    8. The plaintiffs did use reasonable exertions. They exposed the goods to sale in their store, in company with others, after their usual practice, which was all they stipulated to do. Notice to the defendant to take the teas away, was not necessary, because the plaintiffs do not claim under the agreement in May, but under the sale in November, which was quite independent of it. The price was not to be earned by any new act, but was already earned. If notice was necessary, the jury were entitled to presume that it had been given, from the evidence of the subterfuges of the defendant to avoid payment, which could have arisen only from being pressed to take the goods, and settle the concern.
   Tilghman C. J.

According to the entry in the plaintiffs’ book, they sold to the defendant on the 30th November 1808, fourteen chests of tea at one dollar 15 cents a pound on 60 days’ credit, and interest from the end of 60 days, to be paid when taken away, and not to exceed 90 days. The tea was not taken away within the 90 days, and it appears that some dispute took place between the parties, concerning the terms of the contract. On the 24th May 1809, the tea still remaining in the plaintiffs’ store, the defendant signed the agreement which was given in evidence. By this agreement the plaintiffs were to sell the tea on account of the defendant, and credit him with the nett proceeds, and the defendant was to make good the difference which should be between the plaintiffs’ bill and the proceeds of the sale. There is no doubt but this agreement was intended to have some effect on the original contract. It cannot be said, that the plaintiffs might have commenced an action immediately after the signing of the agreement. A reasonable time should have been allowed for making the sale. It seems to have been taken for granted that the tea might be sold, and so it certainly might at some rate. But I do not conceive that the plaintiffs would have been justified in sacrificing it at a very low price, or by a sale at a public auction, without the defendant’s consent. The plaintiffs were dealers in tea, and it was their duty to take the same means of disposing of this tea, *khat a Pendent man would of his own. But suppose there should be no offer for it at private sale, are they to wait for their money for ever ? By no means. If no purchasers offered in a reasonable time, the plaintiffs should have given notice to the defendant and requested him to give instructions how to act, or to come and pay the debt and take away the tea. The plaintiffs had a lien which they had a right to hold ; and unless the defendant after receiving notice, came forward and paid the money, or pointed out some way in which the tea should be disposed of, either by public auction or otherwise, so as not to deprive the plaintiff's of their lien, he would have been subject to an action for the whole debt. But the plaintiffs have failed in their evidence. They have shown nothing of any notice or application to the defendant prior to the bringing of the suit. Perhaps after giving such notice as I have mentioned, the plaintiff's would have been justified in selling the tea at public auction; but this it is unnecessary to decide. I concur with the judge who tried the cause in the opinion, that on the evidence the plaintiffs were not entitled to recover. I am therefore for a new trial.

Yeates J.

It is perfectly clear, that the agreement of 24th May 1809 varies and modifies the contract of sale for the 14 chests of hyson tea made on the 30th November preceding. It contains an acknowledgment that the defendant had bought the teas and admits the delivery. It further states that the plaintiffs had agreed to take the tea on sale for the account of the defendant, and credit him with the proceeds; and that the defendant engaged to make up any loss which might accrue on the tea, that is, the difference between their bill and the nett proceeds. It follows, therefore, that it was incumbent on the plaintiffs to show, that they had made use of reasonable efforts to convert the articles into cash, and had failed therein, before they could recur to the original contract. But if they had honestly endeavored to dispose of the tea and could not effect it, and had given due notice thereof to the defendant, I am of opinion, that in such case, they might support a suit on the original sale. The plaintiffs did not prove these pre-reqnisites on the trial, and the verdict is .not warranted by the evidence which they produced. I am, therefore, of opinion that a new trial should be warded, and that the costs of the late trial should await the event of the suit.

Brackenridge J.

The defendant in this ease purchased of the plaintiffs certain parcels of tea, for which he was to pay at sixty days, with interest from the expiration of that time, or to pay sooner if taken away. It is presumable that the object was to make an under sale in the meantime at a profit. But teas falling in price, this expectation would seem to have failed; and the defendant thence would seem to have been casting himself about to be off the bargain. On calling at the compting house of the plaintiffs he affected to think that the parcels which had been set apart were not those he had purchased, some of them being as he alleged of an older importation. Driven from this, and calling at another time, he affected to think that the plaintiffs had disposed of some of the parcels and had not the teas to deliver. Driven from this, he subsequently would seem to have prevailed upon the plaintiffs to agree to let the teas remain in their compting house, and to dispose of them and to credit him the defendant with the proceeds, and to charge the difference. In this case what were the plaintiffs at liberty to do? What were they bound to do?. Were they at liberty to send the teas to auction? I take it that it would not be considered in the contemplation of the defendant that they should be sent to auction, as in that case a great sacrifice might be made, and which is not done but in a case where money must be raised at all events. Were the plaintiffs bound to employ a broker, or to go round the city, and to look for a purchaser ? I take it they were not bound to do this, no consideration being allowed to pay a broker as a compensation for the trouble, if the plaintiffs should take it on themselves. It cannot but be inferred that it was the understanding of the parties, that the teas should remaiu in the compting-house of the plaintiffs to be sold in the usual course of their business, when a purchaser should offer.

But were they to remain an idefinite length of time? This could not be the understanding of the parties, that the plaintiffs should be out of their money an indefinite length of time; for though the purchase money, or price of the teas, carried interest, yet this is not a compensation for men in *business. It must be construed a reasonable length of time. The plaintiffs did suffer them to remain a reasonable length of time; and it cannot but be presumed offered them for sale, and used the like diligence they would have used had the teas been their own; since they had an interest in the sale, the payment of themselves.

But ought they not to have given notice of the teas remaining on hand, before they brought suit ? At the trial I inclined to think they ought; and now think it behoved them to have given notice. The plaintiffs themselves had this idea of the matter, and alleged that they had given notice; and offered to read a copy of the notice that they had given, which was by a letter to the defendant who had gone to reside at New York, but who had lived in the city at the time of the purchase. But this could not be read, notice not having been given in due time to the defendant to produce the original. The court in this case did not direct a nonsuit as they might have done, but left it to the plaintiffs at their option to suffer a nonsuit, or to go on and take a ver- ■ diet, subject to the exception of a want of notice to be considered in banc. I am of opinion that the plaintiffs could not sustain their action but on proving such previous notice given; for which reason the verdict must be set aside, and a new trial granted.

New trial granted, 
      
       This cause came on a second time for trial before the Chief Justice in February 1812. The plaintiffs had previously given notice to the defendant to produce a letter which they had written to ^ d¿ed t]ie 6tíl 0f March 1810 ; but he did not produoe They then called a witness, who swore tbat be bad made a copy of a letter bearing that da^0 addressed by the plaintiffs to the defendant; fliat’ ]l0 wag dil,0¿ted t]l0m on tll0 day it bor¿ da^ ieave the original at a certain house where lie believed by the number in the Directory the de~ fgmjant lived; and that he had accordingly delivered it to a female who had come into a store in the front part of that house from the apartments occupied by the family, and requested her to deliver it to the defendant. The -witness examined the number of the house on the day he gave his testimony, and by reference to the Directory of the year 1810, it was found to be the number of the house at which the defendant was then stated to reside. Upon this evidence the copy was offered to the jury.
      
        n ■ ■ 7 , , ; • Original letter dehv- ¶ e a a louse, w m e, y ^ le num ei in xe 11 ec oí y, le efen - ant resided sufficient o jus if y te rea' mg °+ f ei n ice opio uce le origina .
      
        Levy objected that the evidence was not sufficient to justify the admission of the copy.
      
        Binney and Sergeant contended that it should go to the jury, and cited Assignees of Osburn v. Ross, 3 Binn. 539.
      Tilghman C. J. In cases of this kind, where the proof is clearly deficient, I am in the practice of rejecting the writing at once. Where I think there is evidence to create a presumption that the original was delivered, but still leaving a doubt, I have referred it to the jury. There is no neces■sity for a delivery to the party personally; it is sufficient to leave it at his dwelling house. Here I -think there is sufficient evidence to let the copy go to the jury. I shall tell them, that if they think the letter was not delivered at the dwelling house of the defendant, they must pay no attention to it.
      The jury again found a verdict for the plaintiffs.
     