
    * James Brown and Another versus Samuel H. Babcock and Another.
    A consignee of goods on his own account refusing to receive them, and alter wards selling them as agent to the consignors, is a competent witness for the consignors in an action by them against the purchasers for the price of the goods, although he had endorsed the bill of lading in blank.
    This action was brought to recover the amount of all invoice of goods shipped by the plaintiffs, merchants in Great Britain, to Lewis Glover. At the trial before Parker, J., at the last November term, the plaintiffs’ counsel stated that after the shipment, and before the arrival of these goods, Glover, who had discontinued business, informed an agent of the plaintiffs here, that he should not take the goods on his own account, to which the agent agreed; that, on the arrival of the goods, no person appeared to take the consignment of them, and they remained for some time in the custody of the officers of the customs ; that Glover made several attempts to sell them for the plaintiffs, and finally sold them to the defendants, informing them that he disposed of them as the agent of the plaintiffs, and agreed to take the defendants’ note for the amount, payable in nine months; that the defendants, after receiving the goods, refused to give such note, and .had not yet paid for the goods.
    To prove this statement, among other witnesses, he called Glover, who was objected to by the defendants’ counsel as incompetent on two grounds: 1st, that he was interested in the event of the suit; and 2dly, that, having endorsed his name on the bill of lading generally, and not as agent, he should not be permitted by his own testimony to invalidate that instrument.
    The objections were overruled by the judge, and Glover was admitted as a witness. A verdict was given for the plaintiffs, sub-to the of the the above statement, which was reported by the judge, the witness ought to have been admitted ; judgment to be rendered according to the verdict, unless the Court should be of opinion that the witness was incompetent; and in such case the verdict to be set aside, and a new trial granted.
    [ * 30 ] * And now Dexter, in support of the objections, contended that the invoice and bill of lading which accompanied the goods, and were in the usual form, purporting that the goods were shipped on the account and risk of Glover, vested the property of the goods consigned in him ; and that the whole contract being in writing, parole testimony ought not to have been admitted to control, impeach, or explain it away.
    
      Glover is directly interested in the event of the action ; for if by his testimony he enables the plaintiffs to recover of the defendants, he avoids the plaintiffs’ action against him for assuming to dispose of the goods, after he had disclaimed the consignment.
    
      Chief Justice. The plaintiffs can never sue Glover for a misfeasance, since, by this action, they have affirmed the sale by him.
    
      Dexter. Glover is still interested in supporting this action ; for the defendants are attached, as his trustees, on account of these same goods. So, if the sale by him should be disaffirmed, he not only cannot receive any benefit, but the costs of the process against his trustees would first be taken out of his effects. A direct interest, however small, in the event of the action, renders a witness incompetent, and supports our objection.
    Finding the Court strongly inclined against him upon the secón i objection, Dexter would not press it.
    
      Sullivan, for the plaintiffs,
    insisted that Glover had no interest m the event of this action, or rather he was equally interested for each party. If the plaintiffs recovered, he was discharged from them If they failed, on the ground that the defendants were debtors to him, and not to the plaintiffs, then the price of these goods would go to his benefit , and the plaintiffs would have their remedy against him for the same amount.
    Should Glover be sued by the plaintiffs for the price of these goods, the evidence in this case would protect him; for it would show his refusal to take the goods on his own account; [ * 31 ] *and the bringing this action is in substance a release to him. A similar answer would apply to an action for a tortious intermeddling with these goods; for the plaintiffs have adopted and affirmed his doings .
    
      As to the second objection, Sullivan referred the Court to the cases in the margin .
    
      
      
        Ilderton vs. Atkinson, 7 Term R. 480, and Evans vs. Williams & Al., in a note to the same case.
    
    
      
      
        Peake’s Law of Evid. 98.—Carter vs. Pearce, 1 Term R. 104.
    
    
      
      
        Preston vs. Merceau, 2 W. Black. 1249.—The King vs. Inhabitants of Scammonden, 3 Term R. 474.—The King vs. Inhabitants of Laindon, 8 Term R. 382.—George vs. Claget & Al., 7 Term R. 359.—Walton vs. Shelley, 1 Term R. 300.—Bent vs. Baker & Al., 3 Term R. 34 —Dixon & Al. vs. Cooper, 3 Wils. 40.—Rich & Al. vs. Topping, 1 Esp. Rep. 176.—Benjamin vs. Porteus, 2 H. Black. 590.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

As the plaintiffs, in their declaration , admit Glover to be their agent in this transaction, they are bound by this admission ; and if they fail in this action, they cannot have recourse to him as the purchaser. If therefore he has any interest, he is called to testify against that interest. But in fact he has no interest ; for if the defendants should pay the money to him on his account, he would then be chargeable to the plaintiffs as for money received to their use. And if the money is not paid to him, the plaintiffs can have no action against him for the price of the goods.

There does not appear to be any weight in the second objection. The rule that a man shall not be permitted to invalidate his own endorsement, is confined to negotiable securities ; and in those cases he may, if not interested, testify to any facts excepting such as may prove the security void at the time of his endorsement . But if the rule extended to the endorsement of bills of lading, in the present case Glover was not called on to invalidate, but to explain his endorsement. Upon his explanation the title of the defendants to the goods remains unimpeached ; and as it does not appear that they have any cross demands against Glover, it must be immaterial to them, whether in the sale he acted as agent or as principal.

We are all satisfied that he was rightly admitted as a witness, and that judgment must be entered according to the verdict . 
      
       One count in the declaration charged the goods as sold “ by the agency of Lewis Glover."
      
     
      
       [ Worcester vs. Eaton, 11 Mass. 368.—Loker vs. Haynes, 11 Mass. 498.—Hill vs. Payson, post, 559.—Bridge vs. Eggleston, 14 Mass. 245.—But quzere whether it te not most conformable to the rules of evidence to admit the witnesses in both cases. The distinction does not seem to be sound.—Ed.]
     
      
      
        [New York State Co. vs. Osgood, 11 Mass. 60.—Morland vs. Jefferson & Al., 2 Pick. 240.—Ed.]
     