#### *Kingman *vs.*Hotaling and others.

The *drawer*of a bill of exchange returned protested for non-payment, may maintain an action upon it against the *acceptor,*without making title to it under the *payee.*

Where goods are contracted to be sold at a stipulated price, to be paid for on delivery and the *agent*of the vendor deliver the goods without requiring payment, the vendor has his election to bring *trover*or *assumpsit;*and in the latter case, the stipulated price regulates the amount of the recovery.

Although the vender may waive the *tort*and bring *assumpsit,*the purchaser cannot allege that there was no delivery according to the terms of the contract, and thus set up his own wrongful act as a defence to the action.

The plaintiff declared for goods sold and delivered, and on the *money counts.*The defendants ple'aded the general issue. The cause was heard before a *referee.*On the hearing the plaintiff produced and proved a bill of exchange, drawn by himself on the defendants, for $1,900, dated 25 February, 1836, payable to C. A. Cook, at the Bank of Albany, sixty days after date, which was *accepted*by the defendants, and *protested for nonpayment ;*and rested. The defendants then offered in evidence a contract in writing, entered into between them and the plaintiff, on the day of the date of the bill of exchange, for the purpose of showing the nature .of the transactions between them: to the admissibility of which the plaintiff objected, but the objection was overruled; and the defendants accordingly produced a contract, dated 25 February, 1836, whereby the plaintiff agreed to deliver to the defendants at his warehouse on the canal at Lyons, after the opening of the canal navigation in the then ensuing spring, 6,000 bushels of *shorts*and 3,000 bushels of bran, and as much more as he should have on *324hand; and the defendants, on their part, agreed to pay the plaintiff *one shilling and three pence*per bushel for the shorts, and *eight pence*per bushel for the bran, and to give him *a draft on them at sixty days date for*$1,900, to apply on the agreement: if the quantity delivered did not amount at the above prices to $1,900, the plaintiff to refund ; and if it exceeded that sum, the defendants to pay the excess on delivery.

[ *424 ] *The defendants then proved that in May, 1836, at an interview between them and the plaintiff, it was agreed that they would receive the shorts and bran, provided the plaintiff would ship and consign them to one *Clark Robinson,*and they would pay for them at the prices specified in the contract, upon delivery to them in the city of Albany; they also agreed to pay $12 for *insurance,*which had been paid by the plaintiff whilst the shorts and bran remained in his store; to pay the freight of the shorts and bran from Lyons to Albany, *Robinson’s*commissions, the interest of the $1,900 draft, and the fees of protest, In pursuance of this agreement, the plaintiff forwarded 10,000 bushels of shorts and 10,830 bushels of bran to *Robinson,*who gave notice to the defendants of the arrival of the property. On the second day of June two boat loads of bran, part of the quantity forwarded by the plaintiff, arrived at Albany, and were delivered to the defendants, who gave Robinson a draft of $913 for the same on S. & W. Hotaling, of New-York. The defendants offered to prove that it was agreed *between them and Robinson,*that unless this draft was accepted by the drawees, the bran should not be considered as delivered to them, but in that case they should deliver it to *Hughes, Botos f Co.*of New-York : this evidence was objected to as inadmissible, but the objection was overruled, and the proof given. The draft upon S. & W. Hotaling was protested, and the bran was delivered to *Hughes, Bows Co.,*who sold it, amounting to 6,242 bushels, for the sum of $643.04 ; the charges upon which for commissions, transportation, &c. &c. amounted to 591.28, leaving a balance of only $51.76, which was paid over to the agents of the plaintiff in New-York. The *residue*of the shorts and bran received by Robinson were sold by him in Albany, and the proceeds, amounting to $1121.50, accounted for to the plaintiff. The draft for $913 was cancelled on the hearing, and delivered to the defendants. The referee reported that there was *nothing due to the plaintiff,*who now moved to set aside the report.

*R. W. Peckham,*for the plaintiff.

*A. J. Colvin,*for the defendant.

[ *425 ] **By the*Court,

Nelson Ch. J.

I think the referee erred. The plaintiff had fulfilled the contract at Lyons, and was entitled to the payment of his draft, if he had chosen to stand upon the first ar*325rangment. This was conceded by the defendants, at the time of the modification in May; and indeed, is virtually admitted in the words of it : for they agree if the plaintiff will see the stuff shipped to Albany, that in addition to the contract price they will pay freight, commissions, insurance while the property remained at Lyons in his warehouse, and interest on the draft.

Then as to the modification; that has also been performed by the plaintiff. The stuff was shipped in pursuance of it, and notice given to the defendants. They have broken this agreement also, and it is inconceivable to me how they can expect to escape the ordinary consequences of non fulfilment.

The defendants having failed to receive, and pay for the property at Albany, the plaintiff had a right to sell for the best price he could, and credit them with the nett proceeds, 5 *Wendell,*139. Indeed, the good sense of the modification seems to be, that the original contract was to stand as performed by the plaintiff, and that he was to see the article shipped at the expense of the defendants and on their account; payment to be made on delivery.

The new arrangment at Albany, between them and Robinson, in respect to the two boat loads of bran, was wholly without authority. The plaintiff cannot, therefore, be affected by it. These boat loads must be regarded as so much delivered under the contract. The defendants knew the extent of Robinson’s power, which was to receive the article as shipped, aid deliver it to them on their paying the stipulated price, charges, &c. Having delivered it without payment, the plaintiff might have sued them in trover; but he may waive the condition, treat the transaction as a delivery at Albany, and look to them for the payment. On this ground also, if the plaintiff should choose to waive his remedy upon the draft, and go for goods sold and delivered, I think he is'entitled to recover for the two boat loads at the value agreed to be paid at Albany. The case would stand as so much *property delivered under a contract broken by the defendants. [ *426 ] The stipulated price there being proper evidence to regulate the value. The argument against this view is, that here was no delivery, as the agent in putting the goods into the defendant’s possession exceeded his authority ; and that even according to the agreement of the agent, the transaction was regarded as not to be a delivery, unless the $913 draft was paid. That is true, if the plaintiff chooses so to view the case : but the whole proceeding was a fraud upon him. The defendants kflew the goods were to be delivered at Albany, and there only, and there to be paid for ; and that beyond this Robinson had no power. The plaintiff may waive the tort and bring assumpsit; but it is not for the defendants to set up their own wrongful dealing with the property as a defence; 1 *Saund. Pl. & Ev.*111. The principle is acted upon every day in the courts.

*326But as the case stands I see no difficulty in the plaintiff recovering on the draft, subject to deductions for payment out of the proceeds of the article so far as received, and upon the principles stated. I had some doubts, though the point is not made, whether the drawer could sue the acceptor directly on the bill: but it is so settled in *Parmenter*v. Symois, both in the king’s bench and house of lords, after acceptance and default and return of the bill back upon his hands ; and this without taking title under the payee ; 1 *Wils.*185; 4 *Br. Par. Cas.*604; *Chitty on Bills,*344; *Bayley on Bills,*212. For the above reasons the report must be set aside ; costs to abide the event.

Ordered accordingly.