By the Court.

delivering the opinion.

We think the new trial was properly granted. When the marble-men delivered the marble to the common-carrier in pursuance of what was or must have been contemplated by the parties, their part of the contract was performed, and their right of action for the price of the marble was complete. The complaint which McCauley has against them on account of their alleged subsequent unauthorized interference with his policy of insurance, if it be actionable at all, would be the subject of an action on the case sounding in damages, not pleadable as a set-off, nor available in any other as a defense to their action against him for the price *834of the marble. He is not without his remedy for any improper settlement of his policy of insurance. If Stark was not his agent, it is not settled, and he may still hold the insurers responsible on it. If Stark was his agent and acted improperly, his remedy is against his agent; and if Stark was his agent and acted properly, he has no remedy only because he has received no injury.

Judgment affirmed.