
    Jacob Lippmann and Gustave Lippmann, Respondents, v. William M. Brown, Appellant.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Principal and factor — A factor may in an emergency, e. g., an attempt to save perishable property, assume extraordinary powers and hind his principal by acts done under them — Measure of damage.
    Where a carload of Florida oranges, consigned for sale in New York city under instructions that it shall not be sacrificed and if not salable at a price named shall be put in cold storage until a good price can be obtained, reaches the factor in New York in an unsalable condition, he is justified by the emergency in reasserting the oranges and selling them at once where that course is shown to have minimized a loss proved to be certain, and may in such case recover of the consignor the loss sustained on the sale, consisting in the difference between the advances made by the factor, freight, expenses and commissions, and the net sum realized.
    Appeal by the defendant from a judgment of the City Court of the city of New York, in favor of the plaintiffs, entered on the verdict of a jury.
    J ones, Dodd & Steinbrink (Meier Steinbrink and Paul Eugene Jones, of counsel), for appellant.
    Wilder & Anderson (Frederick E. Anderson and John Ewen, of counsel), for respondents.
   G-beembaum, J.

The plaintiffs, commission merchants in Mew York, received a carload of oranges from Florida for sale here. Previous to the arrival of the consignment the defendant wrote to the plaintiffs that he did not “ want to have this fruit sacrificed, and if you cannot get for me a satisfactory price for it — and by satisfactory I mean an average price between $3. and $4.-1 would want you to hold it in cold storage until such time as you could get a good price.” It was proven and .remained undisputed that the goods arrived in a decayed and unsound condition; that in such condition they were unsalable; that they could not have been preserved in cold storage, and that the only recourse, to minimize the certain loss upon them, was to reassert the goods and sell them at the earliest possible moment. This course the plaintiffs took and the oranges were reasserted and sold.

The defendant contends that, treating the plaintiffs as his factors, they should not be now permitted to recover from him the loss sustained in the sale, being the difference between the amounts advanced by them on the goods, the amounts paid for freight and expenses and commissions, and the net sum realized, on the ground that they violated their duty to him, as factors, in disobeying his instructions. Concededly, a factor is bound as a general rule to obey the orders of his principal. As was stated in Jervis v. Hoyt, 2 Hun, 638, however, “Emergencies may arise, in which an agent or factor may, from the necessities of the case, be justified in assuming extraordinary powers, and his acts, fairly done under such circumstances, bind the principal. Amongst other emergencies, acts done in the bona fide effort to save perishing property is one.” Clearly, the precise exception to the general rule pointed out in Jervis v. Hoyt, supra, exists here. The plaintiffs did not only all they could have done, but also all they could have been expected to do, for their own and defendant’s best interests.

Moreover, in this case, the defendant, upon his cross-examination, admitted that if he had been aware of the condition of the fruit on its arrival he would not have wanted it placed in cold storage, but should have wanted it sold to the best advantage.

The question as to whether the defendant was in fact the consignor of the goods and the principal of the plaintiffs was left to the jury under a clear and unequivocal instruction, and there was ample evidence to support their finding in that regard.

The judgment must he affirmed, with costs.

Ebeedman, P. J., and Leventbitt, J., concur.

Judgment affirmed, with costs.  