Douglass v. Bernard

As to the first point, it is not a ground for a non-suit, it will be an inducement, however, for a very strict and rigid scrutiny into these accounts on the part of the jury, should they come before them. But, upon the second point, I am of opinion that the renewal of the note was an unauthorized indulgence. Factors must be held *280stictly to their powers. The safety of trade requires the stern enforcement of this rule. The right, at present con» ceded to factors, to sell on credit, is not strictly within the common law rule, governing the relation of factor and principal; it has been engrafted by usage merely, and must not be lightly extended. When, therefore, a factor has made a sale for cash or on credit, his powers are spent. If he undertakes to treat the debt as his own, by granting indulgence as in this case, he must take the risk. The plaintiff must be called.

The plaintiff then insistsd that, upon the ground taken by the court, there was still a balance in his favor for which he claimed a verdict, the value of the soap remitted exceeding in amount the value of the tobacco.

The court thereupon directed a strict and careful examination of the account.

In the course of this examination, it appeared that the plaintiff had debited himself with the tobacco unsold, at the same price at which the sales were made to Causten. But the court ruled, that, under the circumstances of this case, he was bound to show at what price he had sold the residue, and upon failure of such proof, should be charged at the invoice price.

Verdict for plaintiff for $55.

Stevens and Griffen, for plaintiff.

Mulligan and D. B. Ogden, for defendants.