Robertson v. Livingston, 5 Cow. 473

Robertson v. Livingston

5 Cow. 473 | N.Y. Sup. Ct. | 1826

. Curia, per Sutherland, J.

Robertson, as a general agent unrestricted by instructions, was authorized to sell the wool of the defendant on a credit. That objection, however was not taken at the trial; and cannot be now raised. If the proposition be not true in general, it may be the custom and usage of this branch of trade ; which the plaintiff had no opportunity of proving, as the question was not raised before the jury.

The evidence clearly establishes, that Pearson & Co., to whom the wool was sold, were in good credit at the time ; and that the plaintiff acted in good faith, and with all the circumspection which his duty required in the transaction.

The circumstances attending the settlement of the account between the parties, and the giving of the note by the plaintiff for the balance, repel the presumption which might otherwise arise, that he intended to make himself ab*475solutely responsible for the payment. The agent of the defendant, with whom the settlement was made, was informed that the wool had been sold at six months credit; and that the note given by the plaintiff would fall due a few days after that of Pearson & Co. The account delivered to the agent, at the same time, showed that the sale was on a credit of six months, which would expire in July, about two months after the settlement. It is evident, therefore, that the settlement was nothing more than a liquidation of the account; and not an assumption, on the part of the plaintiff, of any responsibility which he had not previously incurred in relation to the solvency of Pearson & Co. In the case of Oakley v. Crenshaw, (4 Cowen, 250,) the agent, in so many words authorized his principal to draw for the whole amount of the balance due to him, for the express purpose of finally closing the account; although he stated, at the time, that but a part of the money had been received by him. This was properly held a final settlement and assumption of the debt; because it was evident that such was, at the time, the intention of the agent and the understanding of the principal. There were also other circumstances which distinguished that case from the present. The motion for a new trial must be denied.

New trial denied.