
    Bernard L. Simpson, Plaintiff and Respondent, v. William Gerard & John S. Betts, Defendants and Appellants.
    1. Where goods—in bond in the IT. S. warehouse, the duty being unpaid—were sold by the defendants, as auctioneers, and, on receiving full payment therefor, they gave to the purchaser an order on the owners, requiring them to deliver the goods; and the purchaser received the order, and then agrees with the owners, that, instead of receiving the goods here, the owners paying the duties, they shall pay to him, and he will receive from them, the amount of the unpaid duties in other merchandize, and that the goods be shipped in bond to New Orleans; and, thereupon, such owners cause the proper entries of the goods to be made at the custom-house, for withdrawal and transportation, and give bond that the goods shall not be landed without the payment of the duties: the purchaser cannot afterwards revoke his instructions, and require the auctioneers to deliver the goods here.
    2. The rule is the same, although the defendants, at the time of the sale, did not disclose the names of their principals.
    3. Nor does it affect the liability of the defendants, that the return duties have not been actually paid by such principals; nor that the goods had not been actually shipped (in pursuance of the entries for transportation, and the giving of the bond,) until after the purchaser declared his desire to revoke his instructions and receive the goods here.
    4. When the purchaser of goods, so sold, accepts an order therefor upon a third person, and makes a new and substituted arrangement, different from, and in lieu of, the original contract, and such third person enters upon the performance of such new contract, the auctioneers are discharged.
    (Before Bosworth, Woodruff and Pierrepont, J. J.)
    Heard, Feb. 11th;
    decided, March 13th, 1858.
    This action comes before the Court, on appeal from a judgment for the plaintiff, on the report of a referee.
    The complaint of the plaintiff alleged, that, on the 18th of October, 1853, the defendants, acting as auctioneers, sold, at auction, to the plaintiff, as the highest bidder, two half-pipes of brandy, (of a particular brand, etc., specified,) for the sum or price of $333.50, which was paid by the plaintiff to the defendants; that he frequently thereafter demanded the brandy, and the defendants have neglected and' refused, and do neglect and refuse, to deliver; that the brandy is of the value of $483.50. The plaintiff “ demands judgment of delivery of said property, putting him in possession thereof, and damages for the detention thereof, in the sum of $100, or for the value thereof, to wit: $483.50, with interest from, the day of payment thereof, 13th October, 1853, and for costs.”
    The answer of the defendants states, that they sold the brandy in their capacity of auctioneers;. that it belonged to Theodore T. Edgerton & Co., doing business in this city; that, at the sale, the brandy was represented to be, and the plaintiff knew that the same was, in fact, stored in the United States bonded warehouse; that, after the said sale, the defendants made, and'delivered to the plaintiff, an order on Edgerton & Co., their principals, for the brandy; which order the plaintiff accepted and, afterwards, presented to Edgerton & Co., and directed them to ship the brandy, still remaining in bond, to New Orleans, agreeing with them to receive and accept from them, in place of the payment of the duties by them at this port, the amount necessarily required by him to pay the duties at New Orleans, being the sum of $48, which the said Edgerton & Co. have ever been, and still are ready to pay; and that, in accordance with the said directions, and in pursuance thereof, the said brandy was shipped to New Orleans, on account of, and to the order of, the plaintiff, and the bills of lading have ever since been, and now are, ready to be delivered to the plaintiff.
    • The defendants further deny, that the value of the brandy exceeds $333.50.
    On the trial, it was proved that the plaintiff purchased the brandy from the defendants, at auction, on the 13th October, 1853.
    That the brandy belonged to Theodore T. Edgerton & Co., though the name of the owner was not known to have been announced at the sale.
    That “ the goods were sold in bond, entitled to debenture, the purchaser having the privilege of having the goods transferred to him in bond and the duties deducted from his bill, or the owner paying the duty, and the purchaser taking them out of bond.”
    That, on the 18th of October, the plaintiff paid to the defendants, the auctioneers, the full price of the goods, without any abatement for the duties, viz.: $333.50; and the defendants gave to him an order on the owners, Theodore T. Edgerton & Co., for 4he brandy.
    The plaintiff took the order to Edgerton & Co. Some difficulty appeared to have arisen in relation to procuring the goods from the warehouse, and one of the firm stated to him that, by a rule of the custom-house, the goods would have to remain a year longer in bond; but proposed that they would give him the same style of brandies here, or would ship the- identical brandies to New Orleans in bond, and deduct the duties from his bill. To this latter suggestion, the plaintiff consented. He agreed to take the amount of the duties from Edgerton & Co. in claret wines; and directed Edgerton & Co. to ship the, brandies to New Orleans, and to have the proper transportation papers made out, and he would call again. Edgerton & Co. thereupon caused the proper transportation entries to be made at the custom-house, and the goods passed for transportation; the directions for the shipment were given, and the bond, that the goods should not be landed without the payment of duties, was executed.
    The plaintiff called after this was done,: and went, with the clerk of Edgerton & Co., to the custom-house, and ascertained the amount of the duties to which he was entitled.
    The transportation entries, or entries for shipment, in pursuance of the plaintiff’s instructions, were made on the 21st of October.
    On the 23d of October, the plaintiff appears to have changed his purpose; and, on or about that day, he called on the defendants, and said that the duties were not so much as he expected, and he wanted the brandies here. The defendants told him they had nothing further to do with it. At that time, he appears to have left at defendants’ office, the order he had taken from them on Edgerton & Co. At about that day, the plaintiff’s agent called on the defendants, and made inquiries on the subject, and was referred to Edgerton & Co., one of the defendants stating to him, that Edgerton & Co. were bound to deliver the brandies here if required, or, if exported, to pay the drawback. The agent went to Edgerton & Go., and stated to them, that the plaintiff wished the brandy delivered here; and was told that they had commenced passing the brandy at the custom-house for New Orleans, and showed him the papers.
    There was some difference in the testimony, upon the question whether, at that time, the custom-hotise entries were fully completed ; but the clerk of Edgerton & Co. testifies that this conversation was had by the agent with him, and that he then had the
    
      shipping papers;, and the clerk from the custom-house testified that the entry for shipment was made on the 21st.
    The brandy was, in accordance with the entry and bond, shipped to Hew Orleans, consigned to the plaintiff, or his order, by the officer of the customs, whose duty it is to ship goods withdrawn-for shipment under bond.
    The bill of lading appears to have been signed October 29th, and was executed in three parts, one of which was forwarded by mail to the address of the plaintiff at Hew Orleans.
    The above statement of facts is in substantial accordance with the report of the referee, and corresponds with the view taken of the evidence by the General Term.
    The referee held, as matter of law, that the plaintiff was entitled to recover, notwithstanding his dealing with Edgerton & Co., and reported in favor of the plaintiff, that he recover $333.50, with interest from October 13th, 1853.
    The defendants appealed.
    
      James W. Gerard, for the defendants (appellants).
    I. The new agreement made by the plaintiff with Edgerton & Co., the owners, by which the plaintiff agreed that the two half . pipes of brandy purchased, should be shipped by Edgerton & Co. to Hew Orleans for him, (the plaintiff,) and the actual shipment thereof released the defendants from any obligation to deliver to him the brandy in Hew York, if they were ever liable as auctioneers to deliver the same to him; and their obligation, if they were ever under any, thus released or waived, could not be restored by the plaintiff, after the bond actually given, giving notice that he wanted the brandy here.
    IT, The defendants, acting only as agents for Edgerton & Co., and that fact being known to the plaintiff at the time he paid his bill, and at the time he received an order from the auctioneers on the owners, is equivalent .to a notice given by the auctioneers at the time of the sale, that they were only acting as agents.
    ITT. An auctioneer, who is known to be only acting as an agent in the sale of goods for others, is not liable for any claim made by the purchaser, if, on demand, he gives the names of the principals.
    
      IV. On the facts found by the referee, he should have ordered payment for the defendants.
    
      J. S. Slauson, for the plaintiff, (respondent,) among other points not material to the question as considered by the Court, argued the following:—
    I. The conversation between plaintiff and Edgerton & Co. was but initiatory to a contract, as there was no agreement as to the amount or price of claret wine to be taken in place of duties; and even if there had been a part delivery, no title would have passed, as there was yet something to be done between the parties in ascertaining the quantity or price. The conversation between plaintiff and Edgerton & Co., did not amount to a waiver, as Edgerton & Co. were third parties, and no consideration was paid by, or received from, Gerard & Betts, and the order on T. T. Edgerton & Co. was but an offer of substantive performance, which was not accepted by plaintiff. (Rapey v. Mackey, 6 Cow. 250 ; 2d Kent’s Com. 496 ; McDonald v. Hewitt, 15 Johns. 349 ; Fitch v. Beach, 15 Wend. 221; Ward v. Shaw, 7 Wend. 404; Andrew v. Dietrich, 14 Wend. 31; Outwater v. Dodge, 7 Cow. 85; Olyphant v. Baker, 5 Denio, 379.)
    II. The referee did find that the acts and transactions of the plaintiff did not amount to a waiver of his claim on Gerard & Betts; and Gerard & Betts all the while admitted that plaintiff was entitled to the brandy here.
    III. To make a delivery effective, it must be made actually, or virtually, in accordance with the terms of the contract, but the shipment and forwarding bill of lading were not in accordance with, or performance of, the contract of Gerard & Betts with the plaintiff.
   By the Court. Woodruff, J.

The plaintiff, if not informed by the nature of the defendants’ business, was notified, when he paid for the goods, that they were acting, in making the sale, as the agents for Edgerton & Co. He received from the defendants an order addressed to that firm for the brandy sold. On the negotiation which ensued, and in view'of the alleged difficulty , in delivering, in Hew York, the particular brandy sold, he consented to receive from Edgerton & Co., and they agreed to pay to him the amount of the duties, and that the brandy be shipped under bond to New Orleans, where he might pay the duties, and receive the goods, or he might export them without such payment, as he should prefer: and by his direction, they (Edgerton ' & Co.) undertook to ship the brandy to him, at New Orleans, in bond, and subject to debenture, or to exoneration from duties, if not landed there; and this was done. If the agents were, in the first instance, liable, personally, upon the contract of sale, this treating with Edgerton and Co., the actual principals, with knowledge of the agency, and the entry, by Edgerton & Co., upon the substituted performance directed by the plaintiff, discharged the defendants from any further responsibility.

. The same result follows, if the agency of the defendants be laid out of view; for, although the defendants were, in such case, bound to deliver the brandy according to the terms of sale, still, if the plaintiff accepted an order on Edgerton & Co. for the brandy—entered upon the negotiation with them, and agreed to accept the duties, and receive the brandy in New Orleans, and directed the same to be shipped, and the brandy was shipped, in conformity with his directions, the defendants were discharged. From the time of the acceptance of their order upon Edgerton & Co., requiring á delivery of the goods according to the terms of sale, the defendants’ relation to the transaction so far partook of the nature of a suretyship-for such delivery, that a dealing by the purchaser with the persons on whom the order was drawn, and the making of a new contract with them, terminated all liability on the part of the defendants. In this aspect of the case, the defendants became liable to Edgerton & Co., who acted upon the defendants’ order, and satisfied it by brandy, delivered according to the plaintiff’s express direction.

The countermand given by the plaintiff of his directions to ship the brandy, came too late to affect the defendants, or re-instate the plaintiff in his original claim to enforce the contract of sale against them. The order was given to the plaintiff the 18th of October. Prior to the 21st, he had presented it, and made the arrangement referred to ; and in pursuance of that arrangement, Edgerton & Co., on the 21st, entered the goods for withdrawal from store and exportation, and gave the bond required by law, that they should not be landed without the payment of duties, upon which a permit was issued for the shipment of the goods, under the direction of the custom-house officer whose duty it was to ship the goods. This was sufficient to conclude the plaintiff. Edgerton "& Co. had then changed their relation to the property, and entered into new obligations at the custom-house—• the plaintiff’s directions were no longer revocable: his change of purpose. was not announced until after all this had been done.

If it were conceded, that, as the party then actually entitled to the control of the brandy, he might even then have required Edgerton & Co. to give him an order for the goods, or such control thereof as would have enabled him to enter the goods again, for consumption or warehousing, at this port; that was a matter with which the defendants had nothing to do; it was to be done between him and Edgerton & Co.

Besides, he was not shown to have made any such request.

The brandy accordingly was shipped, in conformity with his instructions, and made, by the bill of lading, deliverable to him at New Orleans, as directed.

No further responsibility rested upon the defendants, and the referee should have so found.

Upon these facts there is no conflict of evidence.

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

Ordered accordingly.  