
    Boyce, Henry & Walter, ads. T. L. Smith.
    A sale by a factor contrary to the orders of his principal, may be after-wards affirmed by the receipt of the proceeds by the latter; bnt it would not be an affirmance, if at the time of the receipt, it was understood by both parties, that the right of action against the factor was to be left subsisting.
    BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.
    On the 1st of January, 1885, the plaintiff forwarded to the defendants a bill of lading for two hundred and forty-five bales of cotton, informed them that he had drawn on them for the amount insured on the cotton, and directed them not to offer it for sale until they could get twenty cents per pound. The defendant acknowledged the letter, and agreed to accept the plaintiff’s drafts, and to follow his instructions. On the 24th January, the plaintiff wrote again, and suggested a shipment of the cotton, but directed the defendants to exercise their own discretion on that point. On the 28th of January, the defendants wrote again, advising against the shipment. On the 4th of February, they sold the plaintiff’s cotton at sixteen and three-quarter cents, of which sale they advised him on the 6th of February, and to which he objected in strong terms, and apprised them of his attention of calling upon them in Charleston, for redress.
    J. C. Holcombe, examined on the part of the plaintiff, proved that he was present at the interview; that Smith demanded the proceeds of the sale, in the hands of the defendants, and refused to give a receipt in full, which Boyce insisted on having, but offered to replace the cotton sold, by other cotton of equal value. That, finally, the following receipt was signed:
    “$1,903,79. Charleston, 28th February, 1835. Received of Boyce, Henry & Walter, nineteen hundred and three dollars, seventy-nine cents, on account of two hundred and forty-five bales of cotton sold J. A. Davis, (marked ) on my account. (Signed) T. L. SMITH.”
    They separated without agreeing. The same witness stated, that on the 28th February, that the cotton could not have sold for sixteen and three-quarter cents. That on the 16th May, the day when the plaintiff commenced suit for the proceeds of the cotton at twenty-cents, the cotton was worth nineteen and a half cents, which was the highest price that could, at any time, be obtained.
    Other testimony was offered by plaintiff, of the cost of his cotton, showing a loss of two hundred and seventy dollars on the sale; and evidence was also offered of the price which cotton afterwards attained.
    On the part of the defendants, J. A. Davis, the purchaser of the cotton, said, that on the 28th February, 1835, the plaintiff might have had so much of his own cotton as was not shipped at sixteen and three-quarter cents, and that the market price of such cotton did not reach twenty cents at any time.
    The defendants also offered evidence- of the prices current at Liverpool; and the plaintiff gave in evidence the prices current in the Charleston newspapers.
    It was conceded by the defendants, that they had violated their instructions, and for this, that they would have been liable to respond in damages, had it not been for the receipt of the nett proceeds of the actual sale of the cotton by the plaintiff which the defendants contended was an affirmance of the sale.
    The presiding judge instructed the jury, that if a factor, contrary to the orders of his principal, sell cotton, and the principal afterwards accept the proceeds, that this is an affirmance of the sale; that in such circumstances, it'would generally be wholly immaterial with whát intent the principal received the proceeds.
    If, however, at the time the proceeds were paid over, it was the express agreement, or tacit understanding, of both parties, (principal and factor,) that the payment should be made as an advance pro tanto, on account of the principal’s damages, leaving the right of action still subsisting, in such a case the receipt of the proceeds would not be an affirmance of the sale: and he left it to the jury to say whether that was the case on the present occasion.
    The jury found for the plaintiff.
    The defendants moved for a new trial, on the following grounds:
    1st. That the jury in finding that the defendants agreed to give the plaintiff all the benefit of confirming the sale of bis cotton, and all the benefit of rejecting the sale, have found a verdict against the uncontroverted evidence of the plaintiff’s own witness.
    2d. That in finding that the plaintiff bad a right to charge the defendants for the sale, which they did make, and also for damages in making that sale, they found against the evidence in the case, and against the charge of bis Honor the presiding Judge.
    3d. That the demand of the proceeds of the sale, and the receipt of the balance by the plaintiff, was a bar to an action for damages by the plaintiff against the defendants, for making that sale.
    
      Petigru and Lesesne, defendant’s attorneys.
    
      Memminger and Jervey, plaintiff’s attorneys.
   Curia, per O’Neall, J.

This Court concurs in the legal view taken by the Judge-, below, of this case.

The verdict of the jury on the narrow question of fact submitted to them, may be right, it has but little evidence to sustain it; but that little was for them to weigh; if it satisfied them, this Court, although it might have come to a different conclusion, must suffer the verdict to stand.

The motion is dismissed.  