
    J. Clarence Osburn, Appellant, v. Clara Delafield and Others, Respondents.
    
      Commission merchants — violation of instructions as totlie price at wMchto sell goods,
    
    When a consignor of goods, for sale on commission, instructs the consignee to sell the goods at a price which will pay the consignee Ms advances, freight and commissions, and the consignee sells for a less price and draws for the difference, the consignor, who does not pay the draft, having sustained no loss by the violation of his instructions, cannot maintain an action against the consignee for the difference between the price as fixed by his instructions and the price at which the goods were sold.
    Appeal by the plaintiff, J. Clarence Osburn, from a judgment of the Supreme Court dismissing his complaint upon the merits, entered in the office of the clerk of Cayuga county on the Yth day of June, 1893, upon the report of a referee.
    The action was brought to recover as damages the difference between the price at which the defendants sold a consignment of dried apples, consigned to them by the plaintiff for sale on commission, and the sum for which'the plaintiff had authorized the apples to be sold.
    
      
      Lows E. Fuller, for tbe appellant.
    
      E M. Wells, for tbe respondents.
   Dwight, P. J.:

On tbe 24th of November, 1891, tbe plaintiff, at Port Byron, in Cayuga county, consigned to tbe defendants, commission merchants at New York city, 200 boxes of evaporated apples, to be sold for bis account, and received from them an advance on tbe consignment of $500. The defendants also paid freight and other charges on the shipment, which, with their commissions on the sale, finally made, amounted to the sum of seventy-two dollars and seventy-five cents. The market for the goods seems to have been a falling market, and after some correspondence between the parties in respect to the price at which they should be sold, the plaintiff, finally, by the letter of April 12, 1892, consented to a sale of the. apples — to quote the language of the letter — “ at a price that will pay you what you have paid me and your freights and com.”

On the twenty-eighth of April the defendants, without further communication with the plaintiff, sold the apples for a price less than that limited by the plaintiff’s letter of April twelfth, and rendered to him an account of sales, which charged him with the amount advanced and interest, with freight and other charges, and with their commissions, and credited him with the amount received for the apples. The statement exhibited an apparent balance due them of $138.34, for which they drew on him at sight.

The plaintiff did not pay the draft, but he brought this action, in which he claimed to recover from the defendants the difference between the price limited by his letter of April twelfth and the price at which the apples were sold. Upon his own theory of the case, the action was ill-advised. lie might have well rested content with his advantage and have permitted the defendants to bear the loss which they had themselves incurred by selling the consignment for less than their advance and expenses. Certainly the plaintiff had sustained no loss by the violation of his instructions, for he had already received, or had the benefit of the full price at which lie had authorized the sale to be made, viz., the amount advanced by the defendants on receipt of the consignment and their expenses and commissions.

The facts above recited are found by the referee mainly as requested by the plaintiff, and his conclusions of law and direction for judgment are well founded thereon.

The judgment' entered accordingly, must be affirmed.

Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed.  