
    Charles A. G. Depew and Isaac Depew v. John H. Keyser.
    D. H. T. delivered to the defendant certain kitchen-ranges and other articles of hardware, under an agreement in writing, by which the defendant hound him “to sell and account to him (D. H. T.) for, and pay him, the cost prices, and twenty per cent, in addition for all articles sold at retail, and fifteen per cent, for all articles sold at wholesale.”
    
      Held, that this was a contract of sale, and not of agency or of guaranty; and that the defendant having sold the articles at wholesale became immediately liable for the stipulated price, i. e. the cost prices and fifteen per cent, thereon.
    
      Held, that such being the true construction of the contract, the defendant was not entitled to deduct the moneys which he had paid for the storage, freight, &a., of the articles previous to the sale made by him.
    
      (Before Oakley, O.J., Campbell and Boswobth, J.J.)
    May 5, 20, 1854.
    This action was brought by the plaintiffs, as assignees of one D. H. Tichenor, to recover the sum of $1,568.99, as the price of certain ranges and other hardware goods, which the complaint alleged had been sold and delivered by Tichenor to the defendant in December, 1848.
    The answer denied the sale, and averred that the goods had been delivered to the defendant to be sold by him on commission, and that no sale had yet been effected.
    The cause was heard before the Chief Justice and a jnry in December.
    Upon the trial the plaintiffs, to prove the sale and delivery-of the goods in question, produced, and read in evidence, the following agreement, signed by Tichenor and the defendant, dated 27th December, 1848.
    “An agreement between David H. Tichenor and John H. Keyser,
    “ To wit: The stock furnished, as per bill, by D. H. Tichenor, I do agree to sell, and account to him for, and pay him, the cost prices, and twenty per cent, in addition for all articles sold at retail, and fifteen per cent, for all articles sold at wholesale.”
    An invoice of the articles, at cost prices, was annexed to this agreement. The sum total of the cost prices was $1,307.31.
    Evidence was given on the part of the plaintiffs to prove that all the goods, mentioned in the invoice, had been sold at ' wholesale by the defendant. There was, however, a conflict in the testimony as to the quantity and description of the articles sold.
    
      When the plaintiffs rested, the defendant’s counsel moved for a nonsuit and dismissal of the complaint on the following grounds.
    First. That no sale of the goods by the plaintiffs to the defendant having been proved, no recovery could be had against- - the defendant as a purchaser.
    Second. That no consideration was averred in the complaint, or proved on the trial, to have been received by the defendant either as agent for the sale or as guarantor thereof.
    Third. That no demand had been made for an account of the sales, or for the proceeds thereof, prior to the commencement of the suit.
    His honor, the Chief Justice, denied the motion, and the defendant’s counsel excepted to the decision.
    In the course of the trial the defendant’s counsel offered to prove by the deposition of William H. Judah, taken under commission in this cause, and the deposition of Samuel C. Keyser, taken de bene esse therein, and by other evidence, that the storage, transportation, and freight of the said goods, and other expenses necessarily incurred, and paid by the defendant in the sale of such of said goods as had been sold, exceeded one thousand dollars, and offered to prove the amount of such expenses ; and also that the entire proceeds of such as were sold did not exceed five hundred dollars.
    
      I
    
    
      ■ But the Chief Justice overruled the offer, and refused to admit the evidence, or any part thereof, and the defendant’s counsel excepted to the decision.
    The defendant’s counsel then requested the Chief Justice to - charge the jury as follows:—
    First. That unless the jury are of opinion that the defendant has sold all the goods, for the price of which this action is brought, the plaintiff cannot recover in this action.
    Second. That unless a demand of the proceeds of these goods, or of the amount due the defendant under the contract between him and the plaintiff, prior to the commencement of this suit, has been proved to the satisfaction of the jury, the plaintiff cannot recover.
    Third. That unless the jury shall be of opinion that there was a sale of these goods by Mr. Tichenor to Mr. Keyser, un3er the said contract, the liability of Mr. Keyser can be only that of a guarantor, and that in the absence of proof of fraud, or positive negligence by him, the plaintiff cannot recover unless an extra, commission for the guarantee beyond the ordinary commission for the sale be averred and proved.
    Fourth. That any demand against David H. Tichenor, arising upon contract due to the defendant in his own right, at the time of the assignment, and capable of being ascertained by-calculation, is a proper set-off to the claim of the plaintiff, and may be allowed as such by the jury.
    ■ Fifth. That unless the goods in question were absolutely sold by Mr. David H. Tichenor to the defendant, Mr. Tichenor, as owner, was responsible for all loss and damage which might be sustained, without default, on the part of the defendant..
    ■ Sixth. That all expenses necessarily incurred by Mr. Keyser in the storage, transportation, and sale of said goods, constituted a claim against Mr. Tichenor, which should be allowed by the jury by way of recoupment against the amount, if any, to which they may think the plaintiff entitled.
    ■ But the Chief Justice refused so to charge, and to his refusal tó charge on each of the said several points, as requested, the defendant’s counsel excepted.
    - The Chief Justice charged the jury, that by the contract in evidence, it appeared that the defendant had to sell the goods and pay the plaintiff for them at the prices specified ; that this was an agreement, by which he was absolutely bound, without reference to the subsequent profit or loss on the goods; that had he simply undertaken to sell the goods for Tichenor, and account to him for the sales, his responsibility would have been only that»of an ordinary factor; but that the meaning of- the present contract was that he should have all the profits over fifteen per cent., and should bear all expenses and losses, and that he was liable to the plaintiff in this' action for the price agreed in the contract, viz., $1,302.07, with fifteen per cent, in addition, as the testimony showed that the goods sold by the defendant were sold at wholesalethe jury being at liberty to make a proportionate deduction for any goods they should find remained unsold.
    The defendant’s counsel excepted to so much of the said chai'ge, as stated that the defendant was absolutely bound to pay the sum and per centage specified in the contract, without reference to the profit and loss of the adventure, and that he was liable for the expenses and losses on the said goods; and further excepted to so much as stated that the defendant was liable in the present action.
    The jury retired under this charge, and on their return found a verdict for the plaintiff for $1,503.40.
    The cause was now before the court upon an appeal! from the judgment entered upon the verdict, and upon a ease containing the exceptions taken on the trial.
    There was also a motion, upon affidavit,, to amend the answer so as to let in a defence of a set-off, which, as not properly raised by the pleadings, had been excluded on the trial.
    
      T. Sedgwick, for defendant, appellant,
    argued fully the exceptions taken on the trial, and cited: among others the following cases and authorities. (Nixon v. Bentley, 7 How. S. T. R. 316; Mann v. Morewood, 5 Sand. 557; Catlin v. Gunter, 1 Duer, 253; Morris v. Cleasby, 4 M. & S. 566; Loveland v. Shepherd, 2 Hill, 139; Seabury v. Hungerford, Id. 80; Miller v. Gaston, Id. 188; Spies v. Gilmore, 1 Coms. 321; Wall v. Farmer, 2 Coms. 553; Wheelwright v. Moore, 1 Hall, 201; Lansing v. McKellp, 3 Caines, 286; Baily v. Freeman, 4 John. 480; Stephen N. P. 241; Story on Agency, §§ 33, 215, 328 ; Chitty on Cont. 547.)
    
      E. Hoffman, for the plaintiff, respondent,
    controverted the positions of the counsel for the defendant, and denied" the application of the authorities cited.
   By the Court. Oakley, C. J.

We are of opinion that none of the exceptions that have been relied on can be allowed.

The single hinge upon which the cause turned, was the construction proper to be given to a written agreement between Ticlienor and the defendant; and this was a strict question of law, which it belonged, not to the jury, but to the judge alone to determine. Had he charged, however, as requested by the counsel for the defendant, the question would have been left, as a question of fact, to the jury. As the pleadings stood, the defence of a set-off was properly overruled, and the refusal of the judge to charge, upon the other points that were raised, as requested by the counsel for the defendant,-is entirely justified, if the construction which he gave to the written agreement is that which we are bound to adopt.

The words of the agreement are certainly not the best that could have been chosen, but we are satisfied that the construction, which the jury was instructed to follow,.is that which is most consistent with its terms, and expresses .the true intention of the parties. It was not their intention that the defendant should be liable to account, as a factor, only for the net proceeds of future sales, retaining, as a compensation for his services, all that might be realized beyond a definite sum, thus casting upon Tichenor the whole risk of future expenses and losses, and incurring himself no other risk than that of a loss of his commissions. Ebr did they intend that the persons to whom sales should be made by the defendant, should be primarily liable or liable at all to Tichenor, the defendant being liable only as a guarantor. In other words, it was not the intention of the parties to impose upon the defendant the responsibility of a factor acting under a del credere commission. Their meaning was that the defendant should be bound'to sell, and, in the event of a sale, should be immediately and solely liable for the stipulated price, that is, the prime cost of the goods, as stated in the invoice, with an addition of 20 or 15 per cent, according to the nature of the sale. A sale by wholesale or retail was a condition precedent to the liability of the defendant as a debtor; but when the sale was made, his obligation to pay the stipulated price became absolute. As the price was then ascertained, a right of action to demand its payment then accrued, and, to maintain the action, no previous demand of an account was necessary to be made or proved.

It is not denied that, if that, which has been stated, is the true construction of the written agreement, it was a contract of sale, and not of agency and guaranty, nor, consequently, that it was properly received as evidence in support of. the ■complaint, and the motion to dismiss the complaint properly denied. It follows, also, that the claim of the defendant to prove and be allowed the expenses incurred by him for storage, freight, &c., was properly rejected. From the nature of his agreement he took upon himself the risk of these expenses, and consented to defray them, trusting to future sales for his reimbursement. They are expenses which could only be charged to Tichenor upon the supposition that the defendant was a factor, and not a purchaser.

But although, upon the merits, a new trial must be denied, we think that the motion to amend the answer so as to let in the defence of a set-off which was rejected upon the trial, is not unreasonable, and, under the circumstances stated in the affidavit, ought to be granted. Upon the service, therefore, of a copy of the amended answer, which was produced, and upon .the payment of the costs of the trial, and of all that have since accrued, the verdict and judgment are set aside, and a new trial granted.  