
    Clark versus Van Northwick et al.
    A factor, having orders to sell goods for cash, sold and delivered them to a person in good credit, and the next day sent in his bill, but the purchaser did not pay it 5 held, that such sale, being according to usage, was no breach of orders, and tnat the factor, if he had a right was not bound to reseize such part of the goods as remained unsold by the purchaser.
    Assumpsit. At the trial, before Parker C. J., it appeared, that on the 22d of May, 1819, the plaintiff sent several boxes of lemons and oranges from Boston to the defendants at New York, with directions to sell them for cash. The defendants, on Monday, the 31st of May, sold the fruit to a person in good credit, and on the same day wrote to the plaintiff that they had received and sold the fruit, and that the money “ was payable this week.”
    The defendants sent in their bill the next day for payment, but the purchaser had, in the morning, discovered signs of alienation of mind, and his disorder increased during the day. He became quite insane the day after, and so continued until his death. A part of the bill, however, was paid by a person acting on his behalf, and the money has been received by the plaintiff. This action was brought to recover the balance. There was fruit in the store of the purchaser when he was taken ill, sufficient to have paid the amount due, and part of the identical fruit sold was there.
    A question arose, whether this was a sale for cash ; and the defendants introduced evidence to show that both at Boston and at New York, when orders are received to sell goods or cash, although the seller has a right to demand the cash on delivery of the goods, it is nevertheless usual, if the purchaser is in good credit, to deliver the goods and send in the bill for paj ment the next day, or within two or three days, and in.it tms, m the understanding of merchants, would be a sale for cash.
    The judge instructed the jury that if they believed the witnesses as to the usage, and that the purchaser was in good credit at the time, there was no breach of orders in the manner of the sale ; and that whether the defendants might or might not legally have repossessed themselves of the fruit which remained in the store of the purchaser unsold, they were not bound, under the circumstances, to take upon themselves the risk of doing it.
    A verdict was returned for the defendants, and the plaintiff moved for a new trial on account of the above instructions.
    S. D. Parker, in support of the motion,
    said the plaintiff did not choose to run any risk of payment by the purchaser. The defendants are liable, either because they sold on credit for a week, of which their letter is conclusive evidence ; or because they made a sale intended to be for cash, and neglected to retake the goods, which they might and ought to have done, after the purchaser had failed to pay according to the conditions of the sale. Marston v. Baldwin, 17 Mass. Rep. 606 ; Mason v. Lickbarrow, 1 H. Bl. 363.
    
      J. T. Austin, on the other side,
    contended that the construction given by the defendants to the plaintiff’s order was justified by the course of business at New York, that they had used ordinary diligence as factors, and therefore were not liable to this action. Russell v. Hankey, 6 D. & E. 12 ; Goodenow v. Tyler, 7 Mass. Rep. 36 ; Homer v. Dorr, 10 Mass. Rep. 26 ; M’Kinstry v. Pearsall, 3 Johns. Rep. 319 ; Van Allen v. Vanderpool, 6 Johns. Rep. 69 ; Drummond v. Wood, 2 Caines’s Rep. 310; Lawler v. Keaquick, 1 Johns. Cas. 175.
   Per Curiam.

Upon the evidence of the usage, which was properly adm tted, the jury have, found that this was a cash sale ; and it would embarrass business very much if it were not so considered. The defendants did not intend to allow the purchaser a credit for any length of time. They might have sued him immediately after the delivery of the fruit. Such a sale is no violation of orders to sell for cash, unless it is made to a person in insolvent circumstances, which is not the case here. The letter of the defendants does not mean that they had trusted the purchaser for a week, but that the money would be collected in that time.

It is not necessary to determine whether the defendants had a right to reseize the fruit remaining unsold. They had made a sale to a person in good credit, and they might reasonably expect that he would recover from his illness in a few days, and pay their demand. The Court are all of opinion that they were not bound to run the risk of re-seizing the fruit, but that if they had a right to do so, it was a subject for their discretion whether they would exercise such right. Motion for a new trial overruled. 
      
       See Day v. Noble, 2 Pick. 615; Greely v. Bartlett, 1 Greenl. 172.
     