In the case of Goodrich agt. Dunbar (17 Barbour, 646), Mr. Justice Mitchell, in giving the opinion of the court in the first district, in that case, says:
“ The term, in a fiduciary capacity,’ tends to show what is meant by factor, agent, broker, viz.: one in whom a trust is reposed, such as is usually reposed in those persons in their ordinary or regular business; that is, a trust that they will sell and immediately account for the balance after deducting their commissions—not that they shall take a general charge of their principal’s business.” That is, where a trust is reposed and not a credit given—where confidence is reposed in the integrity of the man rather than in his pecuniary ability.
It seems to me that this is an entirely clear case in favor of the plaintiff. The defendant was to sell the butter and remit the proceeds. The only effect of the arrangement as to the commissions was, that the defendant transacted the business for three, and a half per cent, commissions instead of the usual commissions of five per cent.
The order of special term affirmed with $10 costs.