
    * Jonathan Amory versus James Hamilton.
    Of the ldnd and degree of negligence which will make a consignee of merchan dise for sale, liable to the owner. [If the consignee, with the assent of the consignor, put the goods into the hands of a broker to sell, and the broker by misconduct render himself liable, and the consignee take his note for the amount of the sales, and give no notice of it to, and have no assent of the consignor until after the failure of the broker, the consignee is liable for the amount.—Ed.]
    Assumpsit on the common money counts. Trial upon the general issue, before tile chief justice.
    
      On the 4th of July, 1810, the defendant, a merchant in Halifax, Nova Scotia, consigned a parcel of broadcloths to the plaintiff and his partner, since deceased, merchants in Boston, to dispose of to the best advantage, and to remit the proceeds in good bills of exchange.
    The goods were received by the plaintiff, and entered at the custom-house, and the duties secured and afterwards paid by the plaintiff, amounting to 220 dollars.
    On the 21st of July, the plaintiff informed the defendant that on the receipt of the goods, he had applied to persons to purchase them; but not having succeeded, he had sent them to auction, and that they were advertised with other parcels which came at the same time; that an attempt to sell at auction had been made the preceding day, and that one piece only had been sold.
    On the 14th of August, the letter of the 21st of July was acknowledged by the defendant, who, after expressing his disappointment at the indifferent prospect of sale, and his apprehension that there would be a loss, says, that if he were in Boston, he should be induced to cut a piece of the cloths into coat patterns, and send to auction at a limit of costs and charges.
    On the 1st of September, the plaintiff acknowledges the pre ceding letter, and says that three pieces had been sold, and that the goods would be sold only by the piece.
    On the 17th of September, the defendant acknowledges the letter of the 1st, and replies that he perceives the loss will be considerable, but doubts not every exertion would be made, and then says, “ I have taken the liberty to draw on you at thirty days for 1250 dollars, which you will oblige me by answering. The bill being at thirty days will, I trust, prevent you from having to sacrifice the remainder on hand: trust the balance will be in my favor; should it be otherwise, on receiving your account * of [ * 104 ] sales and charges, shall be remitted first opportunity.” This bill the plaintiff accepted in manner following:—“Boston, Sept. 27, 1810. In thirty days we agree to pay Mr. Daniel L. Bishop, or order, on account of Mr. James Hamilton, the proceeds of a parcel of cloths shipped us by said Hamilton, in the schooner Regulator, from Halifax, provided proceeds shall not exceed 1250 dollars, amount of said bill.”
    It appeared from the evidence of C. Hayward, an auctioneer, that these goods had been placed with him for sale; that they were high charged, and were sold with difficulty, after repeated trials, and that they were not all sold until some time in October.
    It was in evidence, that it was his usage in the sale of piece goods, to sell at four months’ credit, when the amount exceeded 10G dollars: that all the goods sold at any one time, to any one purchaser, were paid for by a note, or charged in account to the purchaser ; that when the credit expired and the goods were paid for, the proceeds were paid over to the person entitled to receive the same; that when a sale was made to one person, of goods belonging to one owner, and a note taken, the note so taken was sometimes delivered over to the proprietor, and sometimes other arrangements were made, according to convenience and circumstances. It also appeared that the goods of the defendant were sold to divers persons on different days, who were also purchasers at the same times of other goods.
    It appeared from other witnesses that the usage was to sell for cash under 100 dollars, and at four months’ credit over that sum; and that the auctioneer usually holds the note till maturity, but sometimes gives his own note, to fall due at the time when the notes taken for goods will become due. Sometimes an arrangement is made with the proprietor to take other notes, or to take an average of notes, when the goods of different persons are sold at [ * 105 ] the same auction. Hayward's auction was * considered as the most eligible place of sale for goods of the kind consigned by the defendant; and he was then in good credit, and so continued until the 26th of December following. Other auctioneers kept no accounts with purchasers in the manner practised by Hayward, but invariably took notes from purchasers, which were delivered to the proprietor, in case no special agreement was made. It did not appear that Hayward, had taken notes for the defendant’s goods, having sold and charged in account to purchasers at the usual credit; but that an account was open with those purchasers who had goods on sale at his office, and that the balance on his books was generally in their favor. When he failed, there was nothing due from the purchasers of the defendant’s goods to Hayward.
    
    About the 22d of October, Hayward rendered an account of sales of the defendant’s goods, the net amount of which was 1449 dollars. On the 25th of October, the plaintiff wrote to the defendant as follows:—“ Having effected sale of your cloths, we forward herewith our account of sales, net proceeds 1117 dollars, 81 cents, from which we deduct 16 dollars, 75 cents, for interest, the goods having been sold on a credit of four months; the balance we hold to pay in part your draft on us for 1250 dollars, holding you responsible, should any of the purchasers fail to pay.” On the 30th of October, the plaintiff paid the holders of the defendant’s bill of exchange, 1101 dollars, 6 cents. On the 22d of November, the plaintiff took from Hayward, who was then in good credit, and largely in business, a promissory note for the net proceeds of the defendant’s goods, made payable to and endorsed by one Wilkins.
    
    The plaintiff did not inform the defendant that such note had been taken ; but on the 28th of December, about which time Hay ward and the endorser of the note became insolvent, he wrote thus to the defendant:—“We are grieved to advise of the failure of Caleb Hayward and * J. Wilkins, whose note [ * 106 ] was received for the proceeds of your shipment of cloths. We have written to Hayward to inquire of him what encouragement as to the payment of his debts he can give us, to communicate to you, but have had no reply. In case of failing to get it of them, we shall be obliged to have recourse to you.” This letter was not acknowledged by the defendant. The note taken as aforesaid proved to be of no value; and although the plaintiff had endeavored, by the usual mode of compelling payment, to obtain the money due thereon, no payment had been obtained.
    The plaintiff contended that, having advanced money to the defendant on his bill of exchange, as well as the duties and charges arising on the consignment of the merchandise; and not having been reimbursed by money derived from the sale of the goods, or otherwise ; and having disposed of these goods in the usual mode, and with usual discretion and honesty, he was entitled to recover the sums advanced by him, with interest.
    The defendant contended that the loss of the value of the goods was occasioned by the plaintiff’s own negligence in the performance of the engagement which he assumed; and that he had taken upon himself the risk of payment, by the course of correspondence with his principal, and from having taken the auctioneer’s note, and from not having informed his principal of his having so done.
    The chief justice instructed the jury that the sending of the goods to auction appeared to be with the assent or knowledge of the defendant, and that therefore the plaintiff was not liable to any loss which might be attached to the usual misfortunes of business, the auctioneer, to whom the goods were sent, being in good credit at the time; that for irregularities of the auctioneer the plaintiff, as factor, was not responsible; unless he knew and might have corrected them, or assented to them and neglected any opportunity of calling upon the auctioneer, and obtaining payment or security from him immediately after*the sale, or any [* 107 ] time before his failure; that the taking of Hayward's note by the plaintiff did not, of itself, amount to an assumption of the debt, although it was evidence, with other circumstances, tending to prove that fact; and that if the jury believed the debt was so assumed, the plaintiff could not recover; so that negligence on the part of the plaintiff, or an implied assumption of Hayward’s debt to himself, would prevent him from recovering; but that, without one or the other of these facts, he would be entitled to recover.
    A verdict was returned for the defendant, and the plaintiff moved "or a new trial upon the judge’s report.
    
      W. Sullivan and Mason, for the plaintiff.
    
      Webster, for the defendant.
   Parker, C. J.,

delivered the opinion of the Court.

This cause has been argued rather upon the ground that the verdict is against the evidence, than upon any matter of law arising at the trial. Indeed, on referring to the instructions given to the jury, they seem to have been as favorable to the plaintiff as he could have wished ; and the jury had full opportunity to decide the cause in his favor, if they had thought the facts would justify them.

Two points of law were stated to the jury, as having an influ ence in the case.

1. That the plaintiff was entitled to recover, unless he had been negligent in obtaining security from Hayward, the auctioneer, after it was made known to him that, by his misconduct, Hayward had become responsible for the proceeds of the sale. Or, ¿dly, unless the evidence proved to them that the plaintiff had assumed the debt to himself, by taking the note of Hayward payable to himself, and giving no notice to the defendant that he held it on his account.

As it is not disputed that in either of these cases the law would be against the plaintiff, the only question is, whether there was competent evidence for the jury to make out these points of fact. [ * 108 ] * The plaintiff was authorized, under the circumstances proved, to cause the goods to be sold at auction ; and having employed a proper person, he was not responsible for any loss occasioned by the negligence or misconduct of the auctioneer. But his duty as agent obliged him to have an oversight, so far, at least, as when any thing appeared to be wrong, he should have taken the earliest steps to secure his principal from loss.

The manner in which Hayward transacted the business was •undoubtedly wrong; for he was not authorized to deprive the owner of the goods of the responsibility of the purchasers, and give his own in lieu thereof. This, when done, was not the fault of the plaintiff; for he appears not to have known of, and certainly did not assent to it. Had the business rested here, he would not have been liable. But on the 22d of November he had knowledge of it; and instead of immediately demanding payment, or security, for it, as he might have done, Hayward having rendered himself liable, he took his promissory note, endorsed by one who, like the promisor, became wholly insolvent before the note became due, and of this he gave the defendant no notice, until after the failure of the parties to the note, when the notice was wholly useless; the defendant all the time having a right to suppose, from the previous information of the plaintiff, that he was running no risk, except that of the failure of the purchasers of the goods; for it was in this event only that the plaintiff stated that he should look to him.

Now, il negligence be matter of law for the determination of the Court, we cannot say that it is not made out; for when the state of things, as believed to exist when the plaintiff informed the defendant that his security depended upon the credit of purchasers, was materially changed, as it certainly was when Hayward’s note became the only security, the defendant should have been informed of it; and then, had he assented, or by his silence acquiesced, the plaintiff would have been free from liability. But it * was left to the jury, as a matter of fact. The question [ * 100 ] was tried by them under the most favorable circumstances for the plaintiff; his character for fidelity and discretion as a commission merchant being well known and established. He was found, in this instance, not to have exercised his usual vigilance; and we cannot say that the conclusion was adopted without sufficient evidence.

Upon the other point, also, we think the verdict cannot be disturbed. The note was made payable to the plaintiff; this would not, of itself, determine it to be his; as he might have passed it over to his principal, and his acceptance of it would have closed the transaction. But the plaintiff had before paid the bill of the defendant, drawn for the proceeds of the goods. He took Hayward’s note, knowing that he had not obtained the security of the purchasers of the goods. He kept this note by him, without giving the defendant any information until after the failure.

Under these circumstances, the question for the jury was, What was the intention of the plaintiff, at the time the note was made payable to him ? They determined that it was to take Hayward for his debtor. If there are reasonable grounds for this conclusion, their verdict must stand; and the facts above recited show a lawful ground for the opinion they formed.

It was contended by the plaintiff’s counsel that the silence of the defendant, after notice to him, was an adoption of the act of the plaintiff. But this notice was given when it was too late for any advantage to be taken of it. The liabilities were fixed, and the circumstances of the parties to the note were settled by their insolvency. The cases of ratification are, where the agent has gone beyond or beside his authority, for the benefit, as he supposes, of his principal, and gives him immediate notice. In such case, silence is construed acquiescence and ratification. But a delay of intelligence, until an election to approve or disapprove would be attended with no advantage to the principal, defeats the right to construe silence into ratification.

Judgment on the verdict  