15 Wend. 329 | N.Y. Sup. Ct. | 1836
By the Court,
Mercantile guaranties are not often drawn up by men of the legal profession, and they are so various in point of form, that almost every instrument of the kind calls for a separate interpretation. But little light can be derived from adjudged teases, and the courts have sometimes found it necessary to inquire into the course of trade, or the usage in a particular kind of business, for the purpose of ascertaining the extent of liability for which the parties intended to contract. Although the undertaking of the defendant is not the most difficult of interpretation, there
By this contract the defendant agreed that George C. Lamb, the auctioneer, should duly account with the plaintiffs, first, for all merchandize which they might place in his hands for sale within three months ; second, for the proceeds of that merchandize; and third, that he should so account on demand. But the concluding clause of the instrument contains an important qualification of the undertaking—looking at which, in connection with the other facts proved on the trial, I think it evident that the parties contemplated, first, that the sales made by the auctioneer would, for the most part, be on credit; second, that notes or other securities would be received by the auctioneer from the purchasers of the goods; and third, that those notes and securities, either with or without the guaranty of the auctioneer, would be paid over or transferred to the plaintiffs. The undertaking of the defendant, then, amounted to this: that George C. Lamb should not convert the goods entrusted to him to any other purpose, but should fairly sell them at auction, according to the course of that business, or the agreement between him and the owners; that he should take proper notes or other securities from the purchasers for all such goods as should be sold on credit; and that those notes and securities should be paid over or transferred to the plaintiffs, together with the' money which might be received on sales for cash. This was what the parties intended, and I think all they intended, by the agreement that George C. Lamb should duly account with the plaintiffs for all the merchandize and the proceeds of merchandize which they might place in his hands for sale. It was an undertaking for the good faith of the auctioneer in conducting the sales and receiving the securities, and that the proceeds of the merchandize, whether in security or money, should be paid over to the plaintiffs.
There is no complaint that the auctioneer acted improperly, either in conducting the sales, or in taking notes from the purchasers ; but he has .neither transferred the notes to the plaintiffs, nor paid them ifi any other way for the goods ; and for
It is contended, on the part of the plaintiffs, that if they cannot recover the whole, they are, at the least, entitled to the amount of the cash sales made by George C. Lamb. The witness Drinker testified, in general terms, that the plaintiffs’’ goods were sold “ at the usual credit of six months ; ” but he afterwards says, he thinks Lamb received cash for a part of the goods, and for a part received notes. Hays, another witness, says, that Lamb was “ in the habit of getting cash ” for all goods sold under one hundred dollars; and that a part of the plaintiffs’ goods were sold for cash, and for a part notes were taken “ at six months credit.” How much was received by the auctioneer, without taking notes, does not clearly appear; but it was only a small portion of the whole amount of sales. Although the defendant, in entering into this guaranty, evidently supposed that the sales would, in general, be made on credit, I think he was bound to see that the auctioneer accounted for the proceeds which came to his hands, in cash. It seems to have been the usual course of this business to sell on a credit of six months; but for small sums the purchaser was required to pay cash. Such, at all events, was shown to be “ the habit ” of George G. Lamb ; and it may be presumed that the defendant understood the mode in which the business of his son was usually conducted. The cash sales were not made in pursuance of any new directions from the plaintiffs; and the defendant was answerable, under his contract, for those sales, either on the ground that the auctioneer acted improperly in making them, or because he neglected to account for the proceeds which in that form came to his hands. But the defendant has been discharged from that liability by the act of the plaintiffs. They do not complain that there was any thing wrong in requiring cash payments from those who purchased only a small
The plaintiffs seek to avoid this consequence by setting up, on the argument, that the auctioneer fraudulently represented to them that all the goods had been sold on a credit of six months ; and that they ought not to be concluded by accepting his notes, when they were not advised that there was any money in his hands. The first answer to this argument is, that it does not appear that it was put forward on the trial. The plaintiffs there presented a claim amounting to five or six thousand dollars, and so far as appears, they made no suggestion that there was any principle applicable to a part, which was not equally applicable to the whole demand. They did not then, as they do now, ask the court to decide that they were at least entitled to recover to the extent of the cash sales ; nor did they set up this charge of fraud against the auctioneer. Had they done so, it might, perhaps, have been answered on the spot, by proving that they were fully apprized of the fact that a part of the sales were made for cash. Parties have no right to present their case in one form at the circuit, and then place it upon a different ground in a court of review. A bill of exceptions only draws in question those matters of law which were ruled against the party on the trial. When the judge charged the jury that the defendant was entitled to a verdict, the plaintiffs, if they thought there was any ground for this allegation of fraud, should have asked the judge to submit that question to the jury ; and if he refused, an exception would have been the proper mode of testing the
The claims of the plaintiffs, so far as the surety is concerned, must all share one fate. They probably did not intend that any such consequence should follow, but the new agreement with the principal has absolved the surety from all liability.
Judgment affirmed.