
    THOMAS W. LADD, Plaintiff and Appellant, v. JAMES ARKELL, et al., Defendants and Respondents.
    I. Factob.
    1. Facts sufficient to clothe one with the cha/racter of factor, a. If one whose general business is that of a provision broker, receives provisions from a consignor for sale on his account, obtains an advance thereon in his own name, afterwards procures in his own name another advance with which he pays off the first, and delivers the provisions to the last advancer to be by him sold, he is as to those provisions clothed with the character of factor. •
    1. Right to sue.
    
    
      a. A factor may sue in his own name, for a conversion, or to recover proceeds arising from a sale of the goods of his consignor.
    
      II. Complaint containing allegations sufficient to sustain a cause op actice in either tort or contract.
    1. Under it a recovery either in tort or on contract, according as to which may be supported by the proof, may be had.
    See Atwood «. Lynch, ante.
    
    2. Summons por rbliep. This makes no difference.
    8. Remedy op dependant. By motion to strike out, make more certain, compel an election, or set aside the complaint, whichever one may be appropriate to the particular case.
    Before Freedman, Curtis, and Speir, JJ.
    
      Decided January 31, 1874.
    Appeal from judgment.
    The summons in this action was for relief, and the complaint was as follows :
    “Thomas W. Ladd, the above named plaintiff, by Elias J. Beach, his attorney, complaining against James Arkell and William F. Tufts, the above named defendants, shows to the court as follows:
    ‘1 First. That during the ‘whole year 1866, the above named defendants were copartners iti business, at the city of New York, under the firm name and style of “Arkell, Tafts & Co.,” and as a branch of their business then and there transacted under their said firm name, received consignments of goods to be sold under directions, and made advances thereon, to be reimbursed to them upon the sale of the goods upon which such advances were made.
    “ Second. That during said date, to wit, during the year 1866, the above named plaintiff was a provision broker and commission merchant at said city of New York, and, as such, delivered or caused to be delivered to the above named defendants, as such copartners, on or about March 17, 1866, to be sold by them under the-direction of said plaintiff, for the account of whom it might concern, two hundred and thirty-six tierces of beef, of the value of about five thousand dollars, the property of J. Addison Wood, then in the hands of this plaintiff for sale, and upon such delivery, this plaintiff received from said defendant, for the account of said Wood, the sum of about thirty-eight hundred dollars ; and thereupon gave said defendants directions to make sale thereof, and account to said plaintiff for the proceeds of such sale;, and that said defendants, on or about said date, received said goods from said plaintiff, to be sold as aforesaid, and to account to him for the proceeds thereof; but, that said defendants, though they admit they have sold said goods, and, though frequently requested, have refused to account to said plaintiff, or pay over to him the proceeds of such sale, or any part thereof, and that said defendants have wrongfully converted said property, or the proceeds of the sales thereof, to their own use, to the damage of this plaintiff,„in the sum of one thousand dollars.
    “ Wherefore, said plaintiff prays that said defendants may be adjudged to make to him compensation in damages to the amount of one thousand dollars, besides the costs and disbursements of this action.”
    The answer sets up a general denial of every allegation except as stated in the answer, and alleges that defendants received the beef from the plaintiff as his property, and to be sold on his account and benefit, and not otherwise, and that they have sold it, and rendered him an account of sales, and endeavored to settle with him, but he has refused to do so, and that they advanced plaintiff five hundred and seventy-one pounds three shillings and two pence, and further that they have a set-off against the plaintiff.
    The evidence at the trial showed that the plaintiff was a provision broker, that the beef belonged to one Wood, residing in Ohio, that it was in plaintiff’s care for sale, that plaintiff had placed the beef in the charge of one Amelung, who issued to him a' warehouse receipt which plaintiff had pledged to the New York Warehouse arid Indemnity Company, for advances made by them to him in his own name upon the beef.
    In this condition of affairs plaintiff applied to one of the defendants (they being copartners), and informed him that he had the beef in his care for sale, and he wished to dispose of it, that, the beef belonged to a Mr. Wood, of Ohio, and proposed that the beef should go to some place on the other side of the water to be sold, and further proposed that defendants should make an advance on the beef wherewith to pay off the warehouse company, and then should take it, ship it abroad, and sell it. Defendants agreed to this proposition, engaged freight on the Virginia, and made the advance;
    The beef being in charge of Mr. Amelung, an inspector of beef and pork,, who also acted for the warehouse company, he under 0the plaintiff’s ^ direction shipped it on the Virginia, took the shipping .receipt to defendants, received the advance they had agreed to make, receipting for it in plaintiff’s name, delivered the shipping receipt to defendants, and with the money received from defendants paid off the advance made by the warehouse company, and took up the receipt held by it. ,
    There was evidence that the beef was worth at that time in the market seven thousand and eighty dollars. The plaintiff testified that he had no interest in the suit except as the representative of Wood.
    The plaintiff having rested his case, the defendants’ counsel moved to dismiss the complaint on the grounds: First. That an action of trover cannot be brought in the name of the agent, but must be brought in the name of the owner.
    
      Second. That the proof shows that the plaintiff has no case whatever as against the defendants, on the proofs and pleadings in the cause.
    
      The motion was granted and plaintiff excepted. Thereafter judgment was entered on such dismissal in favor of defendant against the plaintiff for the costs of suit. From this judgment plaintiff appeals.
    
      Elias J. Beach, attorney and of counsel for appellant.
    
      Richard II. Huntley, attorney and of counsel for respondent.
   By the Court. —Curtis, J.

The defendants claim that the position of the plaintiff was simply that of a broker in the transaction, and that he had none of the rights of a factor to maintain a suit. The distinction between a broker and a factor is,- that it is peculiarly the office of the former to simply act as a negotiator between the parties, while the factor is entrusted with possession, management and control of the goods, and authorized to buy and sell in his own name as well as that of his principals (Story on Agency, §§ 33, 34.; Baring v. Corrie, 2 B. & Aid. 148; Higgins v. Moore, 34 N. Y. 418, 419). The evidence establishes that the possession and acts of the plaintiff, in respect to the property, were those of a factor, and that he was recognized as such by the defendants, who as such paid him their advances on the property, and followed his directions in shipping it.

The plaintiff had all the rights of a factor to proceed against the defendants, if they failed to account for the proceeds of the sales. Before the adoption of the Code it was held, that where goods were consigned by the owner to a factor to sell, that the parties to whom he consigned them to sell, must account to him as their principal for the proceeds, and he could sue for them in his own name. This right of a factor was recognized by Lord Manseield, in Drinkwater v. Goodwin, Cowp. 856, and early established in this State (Soland v. Murray, 17 Johns. 24). Since the adoption of the Code, it has been held that a factor who contracts in in his own name, on behalf of his principal, is a trustee of an express trust within the meaning of section 113 of the Code, and is the proper party to bring an action upon the contract (Grinnel v. Schmidt, 2 Sandf. 710; Rowland v. Phalen, 1 Bosw. 43; Considerant v. Brisbane, 22 N. Y. 889). The defendant’s objection, that the plaintiff cannot maintain the present action in his own name, cannot be sustained, and the plaintiff’s exception to the ruling of the court dismissing the complaint upon that ground is well taken.

The remaining question in the case is whether the. proofs and pleadings showed that the plaintiff had any case whatever against the defendants. The court ruled that they did not, and to this the plaintiff excepted. Conceding the view of the defendants to be correct, that the plaintiff failed to sustain the action of trover, it by no means follows that the complaint is to be dismissed, when there are facts alleged in the complaint and established by the evidence sufficient to justify a recovery upon a different theory or form of action (Conaughty v. Nichols, 42 N. Y. 88). In this case it "was held, that a complaint, very nearly the counterpart of the one in the present action, containing a statement of facts constituting a cause of action on contract, sustained by proof of such facts on the trial, authorizes a recovery, although it is in form for a conversion, and the summons in the action is for relief.

In the case at bar, striking out the words in the complaint alleging a conversion, and there remains a state-' ment of facts supported by the evidence, constituting a cause of action ; and the same principle should be applied here as in Conaught v. Nichols, 42 N. Y. 87, “that the plaintiff should not be deprived of a judgment, because the complaint contained an allegation which was unnecessary to such cause of action, and which might well have been disregarded.”

In the opinion of the court it is clearly intimated, that where the defendant chooses to accept such a complaint, without moving to strike out, or to make it more certain, or to compel the plaintiff to elect in regard to the form of action, he should not on the trial be allowed to prevent a recovery where sufficient facts are alleged and proved to constitute a cause of action; also, that if the summons is for- relief, and therefore not adapted to a recovery in another form, that the defendant should, have resorted to his remedy by motion.

In Gordon v. Horstetter, 37 N. Y. 104, Porter, J., observes, “that under our present system of pleading, a party who has alleged and proved facts entitling him to judgment for moneys had and received, will not be barred from that relief by his failure to prove other and further allegations, which would have entitled him to a more stringent remedy.”

Applying these principles to the facts alleged and proved in the present action, it is apparent there was a cause of action on contract, made out against the defendants, and which should not have been dismissed at the trial.

The judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.

Freedman, J.

I concur. I am also of the opinion that having accepted the charge, and undertaken the sale of the goods under the special contract testified to by the plaintiff, and with knowledge that the plaintiff was not the real owner, but merely a factor, the defendants, upon the proof as it now stands, are estopped from claiming that the goods were received by them as the property of the plaintiff individually.  