
    Hallowell & Coburn v. Fawcett.
    1. Practice: sight to open and close argument. Tbe action of the court below in allowing the defendant to open and close the argument, under the admissions of his answer, will not be disturbed where no abuse of discretion is shown.
    2. —— admission oe allegations. The admission by a defendant, in his answer, for the purpose of obtaining the opening and closing of the argument^ of the allegations of the plaintiff’s petition, extends only to the facts pleaded, and not to the sum claimed to be due. Such claim is not an allegation, but simply a deduction from the statements of the petition.
    3. -Nor will such admission estop the defendant from recovering upon a counterclaim set up by him, and thereby prevent a recovery by the plaintiff which would otherwise follow on the admitted allegations.
    4. Bailment: commission merchant : advances. Before a consignee of goods can sell the property consigned to him, contrary to express instructions, for tlie purpose of re-imbursing liimself for advances, lie must first give reasonable notice to tlie consignee to pay him for such advances.
    
      Appeal from General Term, Second District (Lucas County).
    
    Friday, January 27.
    Action by commission merchants of Boston, Mass., to recover $421.44, an alleged excess of advances over net receipts on sale of certain lots of wool consigned by defendant to plaintiffs. The defendant set up a counterclaim for wool consigned and not accounted for; also for damages resulting to him by reason of the sale of his wool, contrary to express instructions, and at a less price than directed, and also for selling at a price less than the market price at the time of sale. There was a trial to a jury; verdict for defendant for $496.50 on his counterclaim, and judgment accordingly. Plaintiffs appealed to the general term, where the judgment was reversed. Defendant appeals to this court.
    
      Perry, Townsend & Elbert for the plaintiffs.
    
      Stewart Bros, for the defendant.
   Cole, Ch. J.

I. The plaintiffs in their petition aver that, in the spring of 1867, they made an arrangement defendant whereby he agreed to consign wool to Üiem for sale on commission; that pursuant thereto defendant did ship wool to them, and they advanced defendant money thereon; that defendant shipped a certain quantity of wool; that they advanced a certain amount of money; that the net proceeds of sale of said wool amounted to a certain other sum, and that a certain other sum was due them for interest on advances. -“Plaintiffs therefore claim that said snm of $421.41, with interest thereon, from the statement of account as aforesaid, is still due them from defendant.”

The defendant, by his' answer, admitted all the facts as pleaded by plaintiff, but denied that he was indebted to them in the sum claimed by them, and also set up a counterclaim. At the commencement of the trial before the jury, the defendant’s counsel claimed the right upon the pleadings to open and close the case, and also stated that he “ would admit the truth of every fact in favor of plaintiffs to entitle them to recover.” The court gave to defendant the opening and closing of the ease. In this there was neither error nor abuse of a sound judicial discretion.

II. The defendant, in order to maintain his counterclaim and to defeat the plaintiffs’ action, offered testimony to show that plaintiffs did not sell the wool for p.g fa}r vaJue. that they ka¿ not accounted for all the wool sent them; that they sold the wool without notice to him, and contrary to instructions, etc. This testimony was objected to, because it tended to contradict defendant’s admissions made by his pleadings and orally, in order to obtain the opening and closing of the case. The objection was overruled, and that ruling is now assigned as error.

The facts admitted by the defendant were only those pleaded by the plaintiffs as above stated; and it was competent for the defendant to show, in maintenance of his counterclaim, that the plaintiffs owed him for other wool than that mentioned in their account and petition, and that he was damaged by disregard of his instructions as to price for which they might sell, etc., and thereby defeat the plaintiffs’ right to recover by showing their indebtedness to him. The same question is substantially made by the instructions asked by plaintiffs, and refused; the plaintiffs’ theory being, that since defendant had admitted the facts stated in plaintiffs’ petition, he was estopped from introducing evidence to controvert the claim that there was $421.41 due the plaintiffs. The refusal of such instructions was not error. The admission can by no means be extended to the claim of the amount due. This was a deduction or conclusion by plaintiffs, and not a fact.

III., The testimony tended to show that defendant gave to plaintiffs express directions not to sell his wool for less fifty cents per pound; and that plaintiffs, without notice to defendant, but while he was ^ for advances, did sell his wool for much less than that price, and concealed from him the fact of such sale until months after it was made.,.- Upon this evidence the plaintiffs claimed and asked instructions accordingly, that if they sold the wool at a fair market price, at time of sale, they would only be liable for the amount received. The court refused so to instruct ; but did instruct that although the defendant was indebted to plaintiffs for advances, they could not sell his wool for less than the price fixed, except, upon proper demand, he refused and neglected to repay the advances due.

The instructions, as given, are in accord with equity and sound reason. \ It would be a great hardship to consignors if the consignees, having made advances, could, at their mere option and without any notice to or consent of the consignors, and against their instructions, force their property to sale upon any market, however depressed., Good faith and fair dealing, as well as the law, require that the consignor shall give the consignee reasonable notice to pay any balance due for advances or otherwise, before he can sell the consigned property, contrary to instructions, in order to re-imburse himself.. See the authorities cited in notey, p. 10 of vol. 1,Pars, on Gont.

These are substantially all the questions made upon the record. The judgment of the district court was correct, and that of the general term must be

Reversed.

Cole, Ch. J.

Upon the consideration of the petition for rehearing filed in this case, the donbt as to the correctness of the opinion heretofore filed, which the writer thereof had all along entertained, was shared in by one other member of the court, and a rehearing was granted. Upon the rehearing and a full reconsideration of the case, we are agreed in holding that the opinion, as filed, is correct and must stand.

Three points are made by the appellant’s counsel in the re-argument, to wit:

First. That it was error to give the defendant the opening and closing of the case. This cannot be so, for the defendant admitted, both in his pleading and orally, before the jury, the truth of the plaintiffs’ allegations in their petition. This entitled him, under the statute and the practice, to the right the court awarded him.

Second. It is claimed that the court erred in admitting evidence tending to disprove the allegations of the plaintiffs’ petition. But the appellant’s counsel, in their argument, seem to forget that the defendant had set up a counterclaim for other wool shipped to plaintiffs than that stated in their petition, and also for damages resulting from the sale of the wool, contrary to instructions, which plaintiffs state they did receive and sell. Now, proof that plaintiffs did receive other wool than stated in their petition did not tend to disprove or contradict the allegations of the petition ; the petition does not state that the wool described therein was all that was received. But it is further contended that this evidence did tend to contradict the claim that defendant owed plaintiffs the sum of $421.41. This is true, and this the defendant might do, under the admission of the allegations of the petition. Bor this, such claim is not an allegation, it is simply a deduction from the other statements of the petition. To illustrate, the plaintiff sues upon an account, setting out the items and averring ;he sale and delivery of each item, and claims that the defendant owes him '$400 thereon. To this the defendant answers, admitting the allegations of the petition, and then sets np a counterclaim, stating the facts, for $500. Now, proof of this counterclaim, which would defeat plaintiffs’ recovery, is not at all inconsistent with, nor does it tend to contradict, the admissions of the answer.

Third. The instructions, which allowed the jury to consider this evidence and base a verdict thereon, are also objected to. But, for the reasons just stated, such objections are not well founded. The judgment must stand

Reversed.  