77 Me. 563 | Me. | 1885
The defendant, as a factor, no instructions being imposed upon him, sold the plaintiff’s wool at the plaintiff’s risk, upon credit; the purchaser failing before the debt became due. The defendant exercised due care in taking the risk, if he was justified in so selling the goods. Does the law authorize a factor to sell his principal’s goods on credit?
It was held in an early case in this state that a factor has such authority. Greely v. Bartlett, 1 Maine, 172. It was the doctrine of the Massachusetts court when our own state was a portion of that commonwealth. Goodenow v. Tyler, 7 Mass. 36. It is the general doctrine. Story, Ag. § § 60, 110 and cases there cited.
We do not think it necessary for the defendant to show that it is a usage of trade to sell wool upon credit. Of course, if the sale was made in defiance of a usage which forbids a sale on credit, the defense fails. But it is fair to presume that a usage exists which permits such a sale unless the contrary be shown. We know that, as far as most descriptions of goods are concerned, it is not unusual to sell on credit. The factor often sells his own goods on credit, and it is to be presumed that he is clothed with as much discretion when he sells goods belonging-to others. It is not unreasonable to suppose that the principal would have sold the goods on credit had the sale been made by him without the aid of a factor. Should it be necessary, however, to appeal to the evidence for the defendant’s justification, we should not hesitate to declare that, in our opinion, such a usage as the defendant invokes is affirmatively proved.
The plaintiff contends that the defendant made himself personally liable for the goods because ho was guilty of negligence in not seasonably apprising the plaintiff of the circumstances of' the sale, and in not using more diligence than he did use to>
The plaintiff is entitled to recover, under the money count, dhe amount which the defendant received from the purchaser on .-his account.
jDefendant defaulted accordingly.