
    Schee against Hassinger.
    
      Philadelphia, Thursday, January 11.
    IN ERROR.
    T y PON a writ of error to the Common Pleas of Philadelphia county, the case was as follows:
    w]iel,e g.00<ja were delivered to a factor to sell and remit, a„dhe sold a Jaya^ej.n terwards remit. SUS':U'S 011 account, but g.ave no further statementeithei? qj gjijgg or receipts, the jury wcre at bberty to presume that the amount sales had come to ins hands m money, and therefore the might recover it upon a count for money had and received,
    
    
      §>u. Whether, when goods are delivered to an agent to sell and remit, the law raises a promise by implication to account, so that an action on the case, will lie for not. rendering an. account, although no express promise was made’
    „ , . Massinger the plaintiff below, brought the present action to March term 1807, against Schee the plaintiff in error, and a certain William French, as to whom the sheriff returned non est inventus. The declaration contained five counts. . . . , . , , . . . „ 1st,'was upon a promise, w consideration that the plaintiff, at the request of Schee and French, had delivered to them cera ’ tain goods to be sold, and of a reasonable reward for the sale, to sell and dispose of them and to render a reasonable r , account upon request. I he 2d, was upon a promise, in consideration of the delivery of certain goods to be sold, to ren- , 77 „ , der a reasonable account upon request, lhe 3d, was upon a promise, on the same consideration, to sell, account, and pay over* The 4th, was upon a quantum valebant for goods sold and delivered; and the 5th, for money had and received. Plea, the general issue.
    By the bill of exceptions upon which the cause came before this court, it appeared that the plaintiff gave in evidence upon the trial, a bill of lading of sixty-four barrels of pork, shipped by him on board the brig Hyram, Graisbury, for Carthagena and a market, deliverable to Schee and French, on account and risk.of the shipper; the manifest of the brig, dated the 29th of November 1804, containing the sixty-four barrels of pork; and an account sales of thirty barrels of the pork, dated at Cape Franpois the 1st of January 1806, and signed by French, in which he stated so much to have been sold on the plaintiff’s account to the government, the net proceeds being 514 dollars 65 cents, payable in cojfee. He then produced as a witness the master of the Hyram, who deposed that fifty barrels of the pork were landed at Cape Franpois 'm the presence of Schee, who with French attended to the landing, and passed the same through the customhouse; that Schee soon after left the Cape, and went to the south side of the island, when French took the direction and management of the pork upon himself; that the bill of lading above mentioned was delivered to both Schee and French, who went in the brig to Cape Franpois; and that the brig sailed from Cape Franpois with the remaining fourteen barrels of pork, which were captured by a French privateer and totally lost. The plaintiff also gave in evidence an invoice of two hogsheads and eight barrels of sugar, amounting to 300 dollars 63 cents, signed by French at Cape Franpois the 12th of March 1806, and shipped by him on board the Aurora for account and risk of the plaintiff'; and lastly he exhibited his account against Schee and French, stating a balance due from them on account of the pork, of 532 dollars ST cents.
    After the evidence had been received and heard by the jury, the counsel for the defendant urged to the court, that an action on the case would not lie, under the facts and circumstances in evidence, because there was no express promise to account; and requested the court to charge the jury accordingly. But the court gave it in charge to the jury that the action did lie, and sealed a bill of exceptions. The jury found a verdict for the entire balance.
    
      
      Levy for the plaintiff in error,
    argued that upon the evidence the action could not be maintained, and that account' render was the only remedy. It is certainly the most appropriate action, where goods have been delivered to á bailiff, as in this case, to make the best benefit for the-owner,, and where the whole account stands open, so that it is impossible for a jury to settle it. It is also the most beneficial to the plaintiff, because in that form he is entitled to recover both what the bailiff has made, and what he might reasonably have made. Co. Litt. 172 a. But be this as it may, the w.ant of an express promise is a decisive reason against the present action. The case of Wilkyns v. Wilkyns 
      
       is in point. The declaration was in assumpsit against the master of a ship, upon a promise, in consideration that the plaintiff at his request had delivered to him certain goods, to dispose of the goods, and to render an account upon his return from his voyage. The defendant pleaded in abatement, that he was the pláintiff’s bailiff of the said goods, and to render an account of the profits; and therefore the plaintiff should have brought account, and not case. Upon a demurrer to this plea, three judges were of opinion that the action would lie, because it was brought upon an express promise, and not upon a promise by implication. But Holt doubted even of this, and told the plaintiff that he would not permit him to give the account in evidence, but that he should direct his proof only as to the damages for not accounting; for he would not travel into an account in such actions. Here is the strongest possible implication that an express promise is necessary, and the doubt of Lord Holt whether even that will answer. In the same case reported by Salkeld, 1 Salk. 9, the action is supported upon the same ground, an express promise. So in 1 Show. 71. The right of the principal to elect any other action than account render against his bailiff, is in all the cases upon the subject made to depend upon a covenant or express promise to account; as -in Hawkins v. Parke 
      . Roll. Abr. 16. 1 Bac. Abr. 37. Anda very sufficient reason for it is, that the law will not imply a promise to account, -for the purpose of making the bailiff answer in a form of action, in which he may be held to bail, and can haye no allowanee for charges and bad debts. The impropriety of tHe action could not appear more clearly than in this case, where no evidence was given that the whole pork was sold, or that the defendant had received any thing but the amount remitted in sugars; and yet the object was to recover the full value of the pork» If a man receive money to expend for a particular purpose, and he lays out part, indebitatus assumpsit does not lie, but only account render. Hartup v. Wardlow 
      . So by analogy assumpsit does not lie, where he has sold only a part; it is matter of account for auditors, and not for a jury.
    
      Hare and Condy for the defendant in error,
    answered that as the objection was merely technical, and against the justice of the case, it ought not to be favoured. Account render is a very proper remedy between partners, where neither party is entitled exclusively to the partnership fund; but embarrassing as that form of action is, it ought not to be required, where the whole fund belongs exclusively to the plaintiff, and the court can compel the defendant to do justice in a simpler form. The old objections that the defendant cannot have allowance, and may be held to bail, have at this time no weight. The court will instruct the jury to make allow-1 anee in damages, and bail may be demanded in account render after the first judgment. The objection upon the ground of principle is equally unsound. There is a legal obligation in every factor to account; and the consequence of it is, what the law uniformly infers in such a case, a promise to perform the duty. It is the foundation of the action of account render; and surely before the statute of Anne which gave account to executors, they might upon the implied promise have maintained case against the bailiff. In Wilkyns v. Wilkyns, as reported by Shower, Holt puts his objection to the action, solely upon the inconvenience of giving a long account in evidence to the jury; but he agreed with the rest of the court that the action lay, and he said there was no case where a man acted as bailiff, but he promised to render an account. The same words are repeated by Salkeld, so that probably Garth no’s report is not correct. What difference is there between a promise implied by law, and an express promise? None certainly as to their supporting an action. If no promise is implied, that is fatal; but as Holt explicitly asserts a promise to account in all cases, and the law asserts the same thing, that difficulty is out of the way. It is of no consequence at present what the plaintiff can recover, whether his whole demand, or damages for not accounting; it is enough under the bill of exceptions if the action lies for any purpose. The case of Poulter v. Cornwall 
       is express, that an action on the case lies where a bailiff has refused to account; and the jury were entitled to presume a refusal from the delay. There is however another reason why the action lies. The question under the defendant’s exception is, whether it will lie upon either of the counts; and the exception is die same as a demurrer to the evidence; it means that no conclusion which the jury could draw from the whole evidence, Would support either count. Now there was evidence enough to support the count for money had and received. If goods are delivered to a man to be sold, and he says nothing about them for a long time, the jury may presume that he has sold them and received the money. Longchamp v. Kenny 
       is in point. The fixed price at which the ticket was to be sold in that case, is the same as the account sales of the thirty barrels in this. It was therefore wholly a question of evidence, whether the defendant had received the money; and from his delay and silence the jury might presume he had.
    
      Levy
    
    in reply. It is not possible for the jury to presume? the receipt of money by the defendant. What may be inferred from written documents is a question of law; and all the evidence, except as to the mere delivery of the goods, was in writing. In fact, the evidence negatived the receipt of money. The sales to the government at Cape Francois were payable in coffee, which not only implied a payment thereafter, but a payment in goods. The difference between this and Longchamp v. Kenny is, that here the defendant shews what he did with the pork; and there the defendant refused to give any account of the masquerade ticket. But that case stands by itself. Lord Mansfield had great doubts whether the action would lie at all; but from his great partiality to the action for money had and received, and partb cularlv from this circumstance, that the defendant came prepared to resist the demand for the ticket, he at length maintained it. The other judges supported the action upon another count. If the count for money had and received could be supported by so forced a presumption as is contended for in this case, it would be a complete surprise on the defendant.-
    
      
      
        Carth. 89.
    
    
      
       1 Roll. Ref. 52.
    
    
      
      
         2 Show. 301.
    
    
      
       1 Salk. 9.
    
    
      
      
        Dough. 137.
      
    
   Tilghman C. J.

delivered judgment.

After the evidence in this cause had been closed, the defendant’s counsel requested the Court of Common Pleas to give their opinion, that “ under the facts and circumstances of “ the case, an action on the case would not lie.” I take it that by asking the courts’ opinion in this manner, the defendant in* tended to give the plaintiff all the advantage of a demurrer' to the evidence. He could not have meant to take the opinion of the court upon matters of fact; because it was not the office of the court to give such opinion; nor if they had given an erroneous opinion, could there have been any redress by writ of error. What we have to consider then, is whether there was any evidence from which the jury might draw an inference to support the action. Two points arise out of the evidence. 1st, Whether when goods are delivered to an agent to sell and remit the proceeds to his principal, the law raises a promise to account by implication, so that an action on the case will lie for not rendering an account, although no express promise was made. 2d, Whether there was any thing in the evidence, from which the jury might infer that money had come to the hands of the defendant from the sale of the plaintiff’s goods.

Qn the 1st point, the plaintiff’s counsel cited the case of Wilkyns v. Wilkyns, reported by Carthew, Salkeld and Shower. As the reports do not exactly agree in what was said by the judges, I consider this case as no further an authority than on the point adjudged, which was, that an action on the •case would lie against a bailiff on his express promise to account, No authority on either side has been cited directly in point, nor shall I give an opinion on this question. It is unnecessary, because I am satisfied that the judgment should be affirmed on the second point in this cause.

It appears -from the bill of exceptions, that sixty-four barrels of pork, the property of the plaintiff, were by him deljWed to the defendant and one French, (who was included in the original writ as one of the defendants, and as to whom the sheriff returned non est inventus) to be sold on account of the plaintiff. Thirty barrels of this pork were sold to the government at Cape Franfois, the net proceeds whereof were 514 dollars 65 cents payable in coffee, as appears by the account of sales; but it is not said when payable. The account sales is dated 1st January 1806, and in March 1806, the defendant shipped from the Cape to the plaintiff in Philadelphia, two hogsheads and eight barrels of sugar, amounting by the invoice to 300 dollars 63 cents. I will not say whether if I had been on the jury, I should have thought myself warranted in finding that money had come to the hands of the defendant, for the use of the plaintiff. But it is certain that the matter given in evidence was worthy of their consideration, as applied to the count for money had and received. Although the account of sales shewed that the pork was sold for coffee, and not for money, yet the remittance of sugar proved that a payment had been made to the defendant, which had enabled him to procure the sugar. It might have been expected too that he should have shewn at what time the coffee was payable, and why payment had not been made, and what had become of the rest of the pork. There was proof that some of it had been lost, but the rest was unaccounted for. These things, I say, were worthy of the jury’s consideration; and if so, we cannot say what inference they might have drawn. In Longchamp v. Kenny, (Doug. 132) the plaintiff recovered on a count for money had and received, although there was no evidence that the defendant had received any money, but only that a masquerade ticket, the property of the plaintiff, had come to his hands, which he had not returned, nor given any account of. We have considered the principle of this case as law in Pennsylvania, and therefore there is no necessity of positive proof that money came to the hands of the defendant. Upon the whole, the record shews, that there was evidence applicable to one count of the declaration. Of this evidence the jury were judges. If they found against the weight of evidence, the defendant’s remedy was by motion for a new trial. I see no error on the record, and am therefore of opinion that the judgment be affirmed.

Judgment affirmed-■■  