
    Farnum Chickering versus James Hosmer.
    A. having consigned certain merchandise to B. for sale, and B. having transferred them to C., this latter promising to account to B. for the proceeds ; C. sold the merchandise, and, on demand of A., promised to pay the proceeds to him ; it was holden, that A. was entitled to recover of C. notwithstanding his promise to B.
    Assumpsit for money had and received. At the trial, which was had before the Chief Justice, at the last November term, it was in evidence, that, in November, 1810, the plaintiff sent to New Orleans, in a trunk having the initials of his name upon it, by one Amasa Kingsbury, a small adventure, consisting of saddles, bridles, &c., to be sold and accounted for to the plaintiff upon reasonable commissions.
    While in New Orleans, Kingsbury, not being able to sell the goods satisfactorily, left them with Hosmer, the defendant, taking his receipt and promise to account with him. Hosmer sold the goods, so as to leave the net proceeds, after deducting commissions, about $95.
    In June, 1811, the plaintiff called on the defendant with a witness, and asked him to settle and pay for the goods belonging to him, which he had so sold. The defendant, recognizing the plaintiff as the shipper of goods left with him by Kingsbury, showed bills of the goods, acknowledged that he had received them from Kingsbury, and had sold them ; and he made no objection to paying the plaintiff, except his accountability to Kingsbury. The plaintiff offered to indemnify him against any claim from Kingsbury. The defendant promised to pay at a future day, and nothing further was said about indemnity, the witness understanding that it was waived. The defendant claimed to be allowed commissions, and engaged to pay before he went to *the Southward, whither he was [^,184] about going. Afterwards the plaintiff again demanded payment in the street in Boston, which the defendant refused, saying, that the use of the money was better than the interest. Kingsbury had written to the plaintiff, stating that he had left the goods with the defendant.
    
      The jury were instructed, that the defendant was accountable in this action for the proceeds of the goods, and that he could defend himself against any claim of Kingsbury, by showing that the goods sold belonged to the plaintiff, and that he had paid over the pioceeds to him upon demand. The defendant moved for a new trial, upon the ground that no privity existed between the plaintiff and defendant ; that there was no consideration for any promise ; and that the defendant was liable only to Kingsbury, who was alone accountable to the plaintiff.
    
      Fuller, for the plaintiff.
    
      C. P. Sumner, for the defendant.
   Per Curiam.

The argument of the defendant’s counsel in this case, which was ingenious and well supported by authorities, has gone altogether upon the ground that there was no such privity 'between the plaintiff and defendant as would be a legal foundation for an implied promise.

We do not think it necessary to decide this point; as there was full evidence in the case of an express promise, which is sufficient to maintain the issue on the part of the plaintiff, if there was a legal consideration for it ; because such a promise, under the circumstances of this case, would amount to an acknowledgment that the defendant held money to the use of the plaintiff.

Now, the defendant had in his hands money, which was the pro ceeds of goods belonging to the plaintiff, which had been intrusted to Kingsbury to sell. Upon application to the defendant for this money, he recognized the plaintiff as the owner of the goods, and, after some conversation about indemnity, not forgetting his accountability to Kingsbury, he promises the plaintiff to pay him, [" * 185 ] and claims an allowance * of his commissions for selling ; and, upon being afterwards called on, does not retract on the ground of mistake or surprise, but avowedly refuses to pay, that he may have the use of the money for a longer period.

The cause was submitted to the jury upon this evidence alone, the defendant not having attempted to contradict it. Indeed, the exceptions taken to the verdict admit that these facts were well proved. For the objections are, the want of privity, and of consideration, and the defendant’s liability to Kingsbury.

We think his liability to Kingsbury not sufficient to render nugatory his promise to pay ; for he may discharge himself from that, by showing that he has paid over the proceeds of the goods to the true owner, Kingsbury not having notified him of any lien or claim, which he had against the plaintiff. And, indeed, Kingsbury, having been the mere agent of the plaintiff to sell, and having put the goods into the hands of the defendant to sell, can have no claim as factor or agent. Whatever right he might have to set-off against the plaintiff having voluntarily parted with it, he cannot call upon the defendant, who will háve discharged his trust by paying over the money where it belongs.

Judgment according to the verdict. 
      
      
        Kidder vs. Shaw et al., 2 Mass. Rep. 398. — Dow vs. Prescott, 12 Mass. Rep. 419.— Kelley vs. Manson, 7 Mass. Rep. 319. — Denston vs Perkins, 2 Pick. 86. — Chesterfield Manufacturing Company vs. Dehon et al., 5 Pick. 7.— Thomson vs. Perkins et al., 3 Mason, 232. — Hourquebie vs. Girard's Adm'r., 2 Wash. C. C. R. 212.
     