
    Otto Heinze et al., Resp’ts, v. Oliver W. Buckingham et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    Factors—Liability of assignee of goods fob advances.
    One B. consigned certain goods to plaintiffs for sale, on which they made advances. Thereafter B.’s interest in them, was assigned to defendants, to whom plaintiffs r. ndered accounts, showing the charges for advances and credits for sales as they took place. In an action for a balance claimed to be due on the transaction, the court refused to charge that if defendants made no agreement to assume the commissions agreed to be paid by B., or to pay commissions, plaintiffs could not recover, or that by the assignment to defendants they did not assume any liability for the advances made to B. or the commissions. Reld, error; that defendants could become liable personally for such advances or the commissions agreed to be paid by B. only by an agreement express or implied to assume his obligation.
    Appeal by the defendants from a judgment in favor of the plaintiffs entered upon a verdict at circuit, and also from the denial of a motion for a new trial.
    
      John J. Adams, for app’lts; Arthur P. Heinze, for resp’ts.
   Barrett, J.

In the year 1887 one Ryan consigned certain goods to the plaintiffs for sale on commission. The plaintiffs made advances to Ryan upon these goods. In' July of the same year Ryan transferred all his right, title and interest in the goods to one Pine, and Pine transferred the same interest to the defendants. Thus the defendants became the owners of the goods in the plaintiff’s hands, subject to the advances made to Eyan and subject also to the arrangement between the plaintiffs and Eyan under which the goods were taken and the advances made. The goods were sold from time to time thereafter, and accounts were rendered to the defendants showing charges for advances and interest, and credit for net proceeds of sales.

The last of these accounts was rendered on the 81st of December, 1889, and shows a balance against the defendants of $286.40. This balance is made up of what remained unpaid of the original advances to Eyan and the interest thereon, after crediting the sales of all the goods; and it is for this balance that the present action was brought. We do not understand upon what theory the defendants are sought to be made liable for this balance. They never assumed Eyan’s personal obligation for the advances made to him, and for aught that appears, that obligation still exists. The goods in the plaintiffs’ hands were of course liable for the advances, interest and commissions agreed upon, and Eyan was liable personally for any balance of account. But the transferees of the goods could become liable in personam for the advances made to Eyan only upon proof of an agreement, express or implied, to assume Eyan’s obligation. No such express agreement is claimed. But it is said that such an agreement may be inferred from the accounts rendered to the defendants from time to time and received without objection. These accounts, however, are quite as consistent with the opposite inference. What they really show is, the sales of the goods and the reduction thereby of the advances. They are accounts in form between the plaintiffs and the defendants, made out as though the defendants were the original consignors, but in substance they simply point out the equity of the defendants from time to time in the remaining goods. It is true they charge the defendants with the advances and the interest thereon, but that was as against the goods and not personally. Accounts could not very well have been made out as between the plaintiffs and the goods. Nor as between the plaintiffs and Eyan. They were properly made out as between the plaintiffs and the defendants.

But the object was to inform the defendants each time they were rendered what goods had been sold, and, consequently, what goods remained unsold, and the extent of the plaintiffs’ lien upon such unsold goods. In other words, to tell the defendants precisely how they stood with regard to the goods, and what their chances were of realizing something from them over and above the plaintiffs’ advances, interest and commissions. The defendants’ interest in the final result also accounts for their suggestions and even for their instructions as to price. But if, upon all the facts, there was enough to go to the jury upon the question of an implied assumption by the defendants of Eyan’s obligation, we think the learned judge erred in refusing to charge as requested at the close of the case. The record on this head is as follows:

“ Defendants’ counsel asks the court to charge the jury as follows :
“ That if the defendants made no agreement with the plaintiffs to assume the commissions agreed to be paid by Ryan, the plaintiffs cannot recover.
“ The court declines ,30 to charge, and defendants except
“ That if the defendants did not agree to pay commissions, the plaintiffs cannot recover.
“Declined and defendants except.
“ That by the assignment from Ryan to the defendants the defendants did not assume any liability for the advances made to Ryan or the commissions.
“Declined and the defendants except”

We do not doubt that the defendants took the goods from Ryan .subject to whatever agreement was made with regard to commissions, and, consequently, that the goods were chargeable with such commissions. But we do not think that the defendants were personally liable for such commissions unless they assumed Ryan’s obligation on that head, or unless they made the plaintiffs their own agents for the sale of the goods. The first proposition covered any agreement, express or implied, to assume such commissions, and the second proposition covered any agreement, express or implied, to pay commissions directly. We think these propositions were correct and should have been charged. The third proposition was also clearly correct The defendants certainly assumed no personal obligation, either for the advances made to Ryan or for the commissions which he had previously agreed to pay by taking an assignment of their transferor’s right, title and interest in the goods. If they did assume any such liability, either expressly or by implication, it was not by the assignment itself, but by their subsequent acts. As the case was put to them, the jury were justified in holding the defendants upon the assignment standing alone.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event

Van Brunt, P. J., and Andrews, J., concur.  