
    Robertson against Livingston.
    oomi^ion * merchant sold credit; °n and til.e,11,. sett!ed with his pnncipai, giving j’™ a ^lanc” which he staaccommodate0 í1™> ant)> for that reason, he made it days^after ** note of the due ™ held, that this Tas sumption of the vendee’s debt; but that to throw this upon the commission merchant, a clear intention to assume it should have been shown.
    It seems, that where a commission merchant is not restricted by instructions he may cell on a credit.
    Assumpsit tried at the New York circuit, March 26th, 1825, before Betts, 0. Judge; when the following facts' were shown in evidence:
    Nov. 19th, 1822, the plaintiff sold the defendant a lot of sheep for $292; and the defendant at the same time, left . with the plaintiff wool, foi sale on commission,. which, on the 10th of January, 1823, the plaintiff sold to Pearson & Co. of New-Jersey about 15 miles from the city of New-York, (where the plaintiff traded,) the vendees then being in good credit for $385 44. The sale was on a credit of . v SIX months.
    In April, 1823, Moses Robertson called on the plaintiff, with an order in writing, from the defendar t to the plaintiff, to settle with the bearer, M. R., for woe 1 which he left with the plaintiff the last fall for sale; and that should be nis discharge for the same.
    
      On the 29th of April, 1823, the plaintiff settled with M, R. and gave him his note payable to the defendant at three months, for $99 42, the sum due to the defendant, after giving him credit for the net proceeds of the wool; and $39 52, the net proceeds of another small .ot of wool: and charging him with the sheep. The plain.iff, at the same time stated an account upon the above principles; and informed M. R. that the note of Pearson <fc Co., had not become due; but in order to accommodate the defendant he agreed to give his note as above, payable, however, some few days after the note of Pearson & Co., would fall due.
    Pearson & Co., had failed.
    The jury found for the plaintiff $187 75.
    
      J. Crary for the defendant,
    now moved for a new trial, on the ground that the settlement and voluntary payment of the balance was an assumption of the debt due from Pearson & Co., (Oakley v. Crenshaw, 4 Cowen, 250 ;) and that the money paid as this was, with a full knowledge of all the facts, could not be recovered back. He also objected that the plaintiff had no right to sell on a credit.
    
      B. F. Butler, contra.
   . Curia, per Sutherland, J.

Robertson, as a general agent unrestricted by instructions, was authorized to sell the wool of the defendant on a credit. That objection, however was not taken at the trial; and cannot be now raised. If the proposition be not true in general, it may be the custom and usage of this branch of trade ; which the plaintiff had no opportunity of proving, as the question was not raised before the jury.

The evidence clearly establishes, that Pearson & Co., to whom the wool was sold, were in good credit at the time ; and that the plaintiff acted in good faith, and with all the circumspection which his duty required in the transaction.

The circumstances attending the settlement of the account between the parties, and the giving of the note by the plaintiff for the balance, repel the presumption which might otherwise arise, that he intended to make himself absolutely responsible for the payment. The agent of the defendant, with whom the settlement was made, was informed that the wool had been sold at six months credit; and that the note given by the plaintiff would fall due a few days after that of Pearson & Co. The account delivered to the agent, at the same time, showed that the sale was on a credit of six months, which would expire in July, about two months after the settlement. It is evident, therefore, that the settlement was nothing more than a liquidation of the account; and not an assumption, on the part of the plaintiff, of any responsibility which he had not previously incurred in relation to the solvency of Pearson & Co. In the case of Oakley v. Crenshaw, (4 Cowen, 250,) the agent, in so many words authorized his principal to draw for the whole amount of the balance due to him, for the express purpose of finally closing the account; although he stated, at the time, that but a part of the money had been received by him. This was properly held a final settlement and assumption of the debt; because it was evident that such was, at the time, the intention of the agent and the understanding of the principal. There were also other circumstances which distinguished that case from the present. The motion for a new trial must be denied.

New trial denied.  