
    WILLIAM J. COMLEY, et al., Respondents, v. HENRY DAZIAN, Impleaded, &c., Appellant.
    
      Sale and delivery of goods upon agreement by vendee to sell the same with vendor's approval, and pay proceeds ratably among creditors of vendor —When vendor has cause of action against vendee for breach of— Variance between pleading and proof, when not fatal—Amendment oj complaint on trial.
    
    Before Sedgwick, Oh. J., O’Gorman and Ingraham, JJ.
    
      Decided March 1, 1886.
    Appeal by defendant from judgment entered on verdict in favor of plaintiffs, and from order denying motion for new trial made upon judge’s minutes.
    The complaint alleged that the plaintiffs assigned, or caused to be assigned and delivered to the defendants, certain theatrical costumes or wardrobes, upon the following terms : that the, defendant, Dazian, should solicit purchasers therefor, and use his efforts to sell said costumes at a suitable price, and with the consent and approval of the plaintiffs, sell the costumes, &c., and pay over the same ; that the defendants, in violation of said contract, have sold and disposed of the said costumes without the consent of the plaintiffs.
    The Court at General Term (after stating the facts as above), said: “ Proof of these facts, as alleged, would give a cause of action, although certain other allegations are made which somewhat obscure the real foundation of the plaintiffs’ claim. There were on the trial marked differences between the witnesses as to what the defendant, Dazian, promised. The jury has competently decided in favor of the plaintiffs. As against the plaintiffs, the testimony of one of them must be held to show that the whole of defendant Dazian’s promise was not alleged in the complaint. It omitted to aver that part of his promise was that he was to pay the proceeds of his sale of the goods ratably among the creditors of the plaintiffs, the two defendants being severally their creditors. This omission would not justify a dismissal of the complaint on the ground of variance between it and the testimony. A complaint may be conformed to the testimony, at any time, on such a point. It appears that the defendant was not surprised. There was enough testimony to support the complaint as thus amended. The letter of one of the plaintiffs to his counsel does not establish conclusively what the defendant, Dazian, agreed to do. It contained instructions as to the making of an assignment in the future. The testimony permitted the jury to find that the arrangement, as proposed by the letter, was not, in fact, carried out. It is argued that the plaintiffs had no cause of action; but thab any cause of action there might be was in the creditors to whom the defendant, Dazian, promised the plaintiff the proceeds of the sale should be ratably paid. The transaction was in the nature, it was claimed, of an assignment for the benefit of creditors, and established the relation of trustee and cestui que trust. The sale by the plaintiffs to the defendants was absolute, and was not in trust for the creditors. The consideration of that sale was the promise made by defendant, Dazian, that he would not sell excepting upon consultation with plaintiff, and to pay over the proceeds to creditors. The testimony did not show that it was the intention of the parties to the contract to give a cause of action to the creditors. The intention to authorize a distribution by Dazian of the money to be received by him, instead of payment to plaintiffs, and then a distribution by them. The legal purpose of the sale by the plaintiffs and of the promise given in consideration, was to benefit the plaintiffs and not the creditors. Therefore, the plaintiffs had a cause of action. Although the sale by plaintiffs was to the defendants, its consideration was a promise by Dazian singly. For this reason the complaint was dismissed against the other defendant.”
    
      A. J. Dittenhoefer, for appellant.
    
      F. K. Pendleton, for respondents.
   Opinion

Per Curiam.

Judgment and order appealed from affirmed, with costs.  