The plaintiff cannot maintain his action unless the evidence would justify a finding by the jury that the suit which is charged to have been malicious was instituted without probable cause by the defendants. The plaintiff contends that, by the terms of the contract between the parties, the defendants were to wait till all the goods consigned to them had been sold, before calling on him for repayment of moneys advanced to him ; and if this were so, it would be plain that there was no cause of action against him. But we do not so interpret the contract. The agreement was oral, and, as testified to, contains only a specification of certain of the rights and duties of principal and factor, and does not, in terms, nor by implication, take away from the factor any rights which he would have had but for the agreement. When it is intended to change, in any particular, the well established rights between such parties, it must be done by an agreement which clearly points to that result; otherwise, it will be presumed that their dealings are governed by the rules of law ordinarily applicable to dealings of that nature. Accordingly, the defendants, having advanced largely to the plaintiff on account of goods not sold, and which had been on hand for several months, were entitled to recover of the plaintiff the balance of account in their favor when the suit was begun. They had the right to look to the goods in their hands as security, and the fur ther right, in the absence of an agreement to the contrary, to sue for the amount due them. Bechwith v. Sibley, 11 Pick. 482. Upham v. Lefavour, 11 Met. 174.
Exceptions overruled.