
    G. T. Dortic vs. Jeffers, Cothrane and Company.
    Where a commission, merchant sold goods for his principal, -without disclosing his agency, and being indebted to the purchaser, gave him his due bill for the amount of his indebtedness: — Held, in an action by the owner for the price of the goods, that the purchaser could not set-off, or claim as payment the amount of the due bill.
    BEFORE WHITNER, J., AT EDGEFIELD, SPRING TERM, 1856.
    The report of bis Honor, the presiding Judge, is as follows:
    “This action was brought to recover one hundred and seventy-nine dollars and sixty-nine cents, the price of four bales of bagging, sold in the months of December and January, 1851-2, to defendants, by one Lafitte, an auctioneer and commission merchant in Augusta, Georgia. The goods had been sent to Lafitte by Dortic for private sale, but were in fact sold at auction for cash, without any notice of such sale being on account of another.
    “ It was in proof that auctioneers in Augusta are required to give bond and security, and that it was the custom to look to the auctioneer for proceeds of sale, made by them. The owners of the goods or persons on whose account sales were often made, never being disclosed.
    “ The defendants had other dealings with Lafitte: as auctioneer, he had sold goods on their account.
    “ The second day of January, 1852, being subsequent to the sale of three of the bales of bagging as above, Lafitte gave his due bill to defendants for one hundred and twenty-nine dollars and twenty cents, ‘balance on account.’ The fourth bale was entered in book, as sold third day of January, 1852, for forty-five dollars and fifty-six cents.
    
      “Tbe book-keeper, wbo was examined by commission, gave ratber a confused statement of tbe settlement between defendants and Lafitte, and tbe reasons tbat induced tbe due bill. Lafitte died some time after, and an administration was taken. He was spoken of as insolvent, but wbetber on proof, or mere statement of counsel I cannot say — any fact deemed material can be supplied by a reference to tbe commission, wbicb appellant’s counsel will have before tbe Court of Appeals.
    “ Tbe questions were, wbetber there was proof of delivery, sucb as to charge tbe defendants, — wbetber on tbe case made, tbe defendants were not entitled to have set-off, or deducted from plaintiff’s demand, tbe amount of tbe due bill, and wbetber there was not sufficient evidence of payment, in whole or in part ? Tbe evidence was submitted to tbe jury with instructions to shape their verdict as they might find tbe fact. If tbe agency of Lafitte was neither disclosed in fact, nor to be inferred from tbe transaction itself, tbe jury were told tbat tbe defendants might treat it as a dealing with Lafitte as principal, so far at least as might be necessary to protect themselves from loss. Tbe suit being by another, inasmuch as discount could only be allowed stridi juris of mutual demands between tbe same parties, and therefore a recovery over could not be bad by defendants as might be, if suit was brought by Lafitte, nevertheless pro tcmto it might be regarded as a just defence in tbe reduction, or bar of plaintiff’s demand; again, if it should be found tbat a settlement made bad included this demand in whole or in part, it was a good payment accordingly as they might find.
    “ Tbe jury seem to have attained tbe conclusion, tbat tbe first sales were paid to Lafitte, and either rejecting tbe legal principles held in favor of defendants, or not regarding tbe facts as justifying their application, returned a verdict for amount of last sale, forty-five dollars and fifty-six cents.”
    
      Tbe plaintiff appealed, and now moved this Court for a new trial on tbe grounds:
    1. Because tbe note of A. Lafitte, tbe auctioneer, in favor of defendants, was permitted to be given in evidence by them as a discount against tbe claim of plaintiff.
    2. Because tbe jury was instructed ths¡,t tbe verdict in tbe case should be tbe difference between plaintiff’s claim and defendants’ discount.
    8. Because it was beld, tbat tbe name of tbe plaintiff should have been disclosed by tbe auctioneer to defendants at tbe time of said purchase as owner of tbe goods sold to defendants. .
    
      Magrath,. for appellant.
    
      Carroll, contra.
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

In this case it cannot be pretended tbat tbe note or due bill of Lafitte can be set up as a discount against tbe plaintiff. It is not between tbe same parties.

It is supposed, however, tbat it is quasi payment to tbe deceased Lafitte, who sold tbe plaintiff’s goods to tbe defendants. But it can have no such effect. For, if it bad been so regarded, there was no necessity for a due bill, its amount would have been deducted.

Tbe reason given by Grenville, tbe clerk of Lafitte, in tbe answer to tbe sixth cross-interrogatory, why tbe due bill was given, shows most clearly tbat thé amount, was not considered as a payment. Por be tells us it was given because tbe defendants were charged on tbe books with tbe proceeds of tbe bagging belonging to tbe plaintiff. This, as I understand tbe proof, is tbe same as saying the defendants were to pay for tbe bagging to tbe owner Dortie, and Lafitte was to pay them bis own indebtedness.

In bis answer to tbe third cross-interrogatory, Mr. Grenville tells us, tbe bagging was sold by Lafitte for tbe plaintiff, not as an auctioneer, but as a commission merchant.

. In Atkinson vs. Teasdale, 1 Bay. 295, it was settled, as far back as 1798, that debts due by a factor cannot be set off' against tbe demand of tbe owner of tbe property sold by him.

According to this principle, tbe due bill could not be set off; or allowed, in any shape.

Tbe verdict deducting tbe due bill from tbe amount of tbe plaintiff’s demand is wrong.

Tbe motion for a new trial is therefore granted. .

WITHERS, Glover, and Munro, JJ., concurred.

Motion granted.  