
    (75 Hun, 246.)
    OSBORN v. DELAFIELD et al.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    Factors and Brokers—Violation op Instructions to Sell.
    Where a consignor directs his broker to sell the goods consigned at a price that will pay advances made by the broker, and the freight and commissions, and the broker sells for- less than, such amount, the -consignor has no right of action against the broker, as he sustained no loss • by the violation of his instructions.
    Appeal frorii judgment on report of referee.
    Action by J. Clarence Osborn against Clara Delafield and others. From a judgment entered in Cayuga county in favor of defendants, plaintiff appeals. Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
    Louis E. Fuller, for appellant.
    E. M. Wells, for respondents.
   DWIGHT, P. J.

On the 24th of November, 1891, the plaintiff, at Port Byron, in Cayuga county, consigned to the defendants, coin-mission merchants at New York city, 200 boxes of evaporated apples, to be sold for his account, and received from them an advance, on the 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 $72.75.' The market for the goods seems to have been a. falling one, 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 commissions.” On the 28th 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 12th, and rendered to him an account of sales, which charged him with the amount advanced, with interest, and 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 différence between the price limited by his letter of April 12th and the price at which the apples were sold. Upon his own theory of the case, the action was ill advised. He might well have 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 he 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.

Judgment appealed from affirmed. All concur.  