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192 Dubois v. Harcourt,

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450 Hart v.......

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96 Durkee, Smith v.... 684

9 Jennings v. Merrill, Dutch Church of N. Y., Van

Johnson v. Moss,

145 Kleeck v..

457
V.

148
Dutchess C. P., The People v.... 658
Dyett and wife v. North American
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570

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Kennedy v. Wood,

230 Kinnan, Atkins v....

241 Ellison, Carr v....

1781
Kortright v. Buffalo Commercial

91 Emmet's adm’rs v. Bradstreet, 50

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622 - v. Parker,

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626
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81 Fidler v. Delavan,

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671 Flower's executors v. Garr, 668

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633 Ford v. Monroe,

210
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72 Fox v. Phelps,..

437 Melhinch, McPherson V....... 671 Franklin, Miller v..

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677 Harcourt, Dubois v.

41 North American Coal Co., Dyett v. 570 Harris, Waller v.

555 Hart v. Dubois,

236

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225 Herkimer Judges, The People v.: 186|2gden American Ins. Co. V....... 287

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174 Hewlett & Post, Pearsall v....... 111 Hinman and others v. Booth, 666

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225 Hoffman v. Carow, 21 Parker, Evans v

622 Holmes, Corlies v. ...

681 Pearsall v. Post and Hewlett, 111 St. John v... 609 Peck v. Acker,..

605 Hone's executors v. Van Schaick,. 564 Pell, Jenkins v.

450 Hubbard, Stillwell and wife v.a.. 44 People The, ex rel. Barron, v MonHubbell v. Denison, 181

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139
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609 Salter v. Burt,

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636 Sands v. Bullock,

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555 Scranton, Buffalo City v...

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201 Sears, The People v.....

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184 Sherman, Walker v.... 636 Welcome, Sterling v. .....

238 Sickles v. Mather,

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673 v. Janes,

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174 — v. Durkee,..

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96 Spence, Watson v...

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189 Sprague v. Blake,.....

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47 starr v. Child,

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230 Steele v. Mott,

679 Sterling v. Welcome,

238 Still v. Hall,....

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IN JULY TERM 1838-IN THE SIXTY.THIRD YEAR OF THE INDEPENDENCE OF

THE UNITED STATES.

Continued from Volume Nineteen.

JENNINGS vs. MERRILL and others.

A contract of sale by a factor or agent, entrusted with goods for the purpose of

sale, is valid, and will protect a purchaser against the principal, although no money is advanced, or negotiable instrument or other obligation given at the time of the contract; it is enough if an obligation be subsequently entered into on the faith of the contract, at any time whilst it remains unrescinded: It was accordingly held in this case, that the subsequent endorsements of promissory notes, and in anticipation of which the property was transferred, gave effect to the contract.

ERROR from the superior court of the city of New-York. This was an action of trespass, for taking and carrying away a quantity of merchandize, sent by the plaintiff, residing in Philadelphia, to a mercantile firm in New-York, transacting business under the name of Butler & Co. to be sold on commission. On the 9th October, 1834, Butler & Co. put into the hands of two of the defendants, transacting business in New York, under the Vol. XX.

2

Jennings v. Merrill.

name of Merrill & Bowen, an invoice of goods received from the plaintiff, amounting to $3135.19, with a note attached, that they considered the goods as the property of Merrill & Bowen to be removed at their pleasure. The goods were then in the store of Butler & Co. The invoice was delivered to Merrill & Bowen, to secure them for endorsements to be made on the faith of it, upon the paper of Butler & Co., to about the amount of $2,500, as the same should be wanted by the latter firm in making purchases. In the latter part of the month of October, 1834, Merrill & Bowen endorsed two notes for Butler & Co., amounting together to $2301.33, which they were subsequently obliged to pay. These notes were dated on the 23 and 28th October. The members of the firm of Butler & Co. having absconded, Merrill & Bowen on the 20th December, 1834, took possession of the goods specified in the invoice, and nine days thereafter, this suit was commenced. The chief justice of the superior court charged the jury, that if they should find that the endorsements of Merrill & Bouren were given under the contract between them and Butler & Co., relative to the property in question, and upon the faith thereof, that the defendants were entitled to a verdict. The counsel for the plaintiff excepted to the charge, and the jury found a verdict for the defendants. Judgment having been entered on such verdict, the plaintiff sued out a writ of error.

D. Graham, for the plaintiff in error, insisted that the contract between Butler & Co., and Merrill & Bowen was not valid within the meaning of the statute, Session Laws of 1830, p. 203; that to render a contract of a factor, entrusted with the possession of merchandize for the purpose of sale, obligatory upon his principal, it should be shown that the case came strictly within the terms of the statute ; that the sale or disposition of the property was for money advanced, or for a negotiable instrument, or other obligation given by the person to whom the goods were transferred at the time of the contract. Here was neither : at the time of the contract there was no money advanced, nor was any instrument or obligation given by the party to whom the

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