#### James Swan *et al. versus John*P. Nesmith *et al.*

The liability of a fac„íL to his principal, for the proceeds sales made by him under a *del credere*commission, is not affected by the statute of frauds, and therefore may be proved by parol evidence.

Where the principal, in an action against a factor to recover the amount of sales un der a commission *del credere,*declared in *indebitatus assumpsit*on a balance of accounts, — for money had and received, — and on an *insimul computassent,*— and amended by declaring against the defendant as a simple factor, and likewise as a factor under a commission *del credere,*it was *held,*that all the counts were for tile same cause of action, and that the amendment was therefore allowable.

Assumpsit. The action was entered in the Common Pleas at September term 1827. The declaration then contained three counts. The *first*alleged that the defendants were indebted to the plaintiffs, on the balance of accounts, in the sum of 568 dollars 79 cents, and that in consideration thereof they promised to pay that sum on demand, with interest, and damages for the non-acceptance of the plaintiff’s draft. The *second*was for *money had and*received, and the third, upon an *insimul*computassent, each for the same sum.

At December term 1827, of that court, the plaintiffs offered three new counts as amendments. The *first*alleged, that the defendants, in consideration that the plaintiffs had intrusted them with goods to be by them sold, promised to pay the plaintiffs, on demand, the sum for which the goods should be sold, deducting the customary commission as a compensation for their agency, and that they sold the same for 1292 dollars 14 cents, exclusive of such deduction. The *second*count was of a. similar nature. The *third*alleged, that the defendants, in consideration that the plaintiffs would deliver to the defendants divers goods to be by them sold for a reasonable reward, promised to sell the same and to guarantee to the plaintiffs the price for which the same should be sold, deducting the reasonable reward, in a reasonable time after such sale, and that the plaintiffs had delivered the goods to the defendants and the defendants had sold the same for 1292 dollars 14 cents, hut had not guaranteed nor paid to the plaintiffs the price, deducting the reward, although a reasonable time had elapsed since the *227sale and although a special demand had been made upon them.

The defendants objected to the reception of these new cotints as amendments, for the reason that they were for causes of action different and distinct from those contained in the original declaration ; but the Common Pleas permitted them to be filed as amendments : to which the defendants excepted.

When the cause came on for trial in this Court, before *Morton*J,, the defendants moved that the new counts might be struck out, as having been improperly admitted in the court below ; but the judge directed the trial to proceed, reserving the question as to the new counts for the consideration of the whole court.

It appeared in evidence, that the plaintiffs, who lived in this county, consigned to the defendants, at New York, the goods mentioned in the new counts, to sell on commission ; that the defendants made sales of the same and stated an account with the plaintiffs, and paid over to the plaintiffs all the money they had actually received for such sales, but that some of the purchasers had failed, so that payment had not and probably could not be obtained of them. . The defendants took a promissory note on time, of one or more of the purchasers, to whom they had sold a part of the goods, and another part they sold to one Rust on a credit of six months without taking any *note or*other security from him.

The plaintiffs then offered the testimony of witnesses to prove, that at the time when the defendants received the goods for sale, they agreed verbally to guarantee the sales. The defendants objected to the admission of this evidence, as being ntended to prove a contract to pay the debt of another, which can only be proved by writing. But the objection .was overruled, and the evidence went to the jury ; who thereupon returned a verdict for the plaintiffs for the amount of the sums which the purchasers had failed to pay, deducting the commission.

No evidence was offered by the plaintiffs, either in the Common Pleas or in this Court, respecting any claim upon the defendants, except under the guarantee set forth in one of the new counts.

*228*Oct. 29th.*

The defendants moved for a new trial.

*Fletcher,*for the defendants,

said that the decision of the coTMt below on a matter within its discretion, was final, but that the admission of new counts for different causes of action, by way of amendment, was not within its discretionary power; and he insisted that the new counts filed by the plaintiffs were of that description, and therefore ought not to have been received. *St.*1784, c. 28, § 14 ; *Haynes*v. Morgan, 3 Mass. R. 208 ; *Willis*v. *Crooker,*1 Pick. 204 ; *Wells*v. *Ross, 7*Taunt. 403 ; *Little*v. *Little,*cited in 3 Pick. 13.

On the point, that parol evidence was not admissible to prove the guarantee, for that it was a promise to be answerable for the debt or default of another person, he cited *St.*1788, c 16, § 1 ; 3 Chitty on Com, and Manuf. 317 to 320 ; Chitty on Contr. 201, 202 ; *Matson*v. *Wharam,*2 T. R. 80 ; *Anderson*v. *Hayman,*1 H. Bl. 120 ; 1 Wms’s. Sa.und. 211 *a,*note ; *Peale*v. *Northcote, 7*Taunt. 478, and note ; *Gall*v. *Comber,*ibid, 558 ; Bul. N. P. 280, *et seq.; Castling*v. *Aubert,*2 East, 325 ; *Chase*v. *Day,*17 Johns. R, 114; *jackson*v. *Rayner,*12 Johns. R. 291 ; *Leonard*v. Vredenburgh, 8 Johns. R, 29 ; *D'Wolf*v. *Rabaud,*1 Peters’s Sup. Court R. 476.

*Metcalf,*for the plaintiffs.

It might be inferred from the language of the report of *Willis*v. *Crooker,*1 Pick. 204, that a new count filed as an amendment must *appear of*rec*ord*to be for the same cause of action as the original declaration. But this can seldom appear on. inspection only, and must therefore be ascertained from the course pursued at the trial, and from the evidence offered to prove the new count. *Hart*v. *Longfield, 7*Mod. 149. In *Cornwall*v. *Gould,*4 Pick. 446, the amendment was said by the Court to be for the same cause of action, yet it could not there appear of record. So in *Ball*v. *Claflin,*5 Pick. 303 ; which case fully warrants the amendment in the case at bar.

But if the amendment should be rejected, still judgment may be rendered on the *second*count in the original declaration, as that count was supported by the evidence. Where a special contract is performed, so as to leave only a debt or duty, *indebitatus assumpsit*lies. 2 Stark. Ev. 95 ; *Guy*v. Gow*229er, 2 Marshall, 275 ; *Bank of Columbia*v. *Patterson’s*Adm’r, 7 Cranch, 299. Here the goods had all been sold for cash or notes, and the plaintiffs had demanded payment of the defendants according to the original agreement. Receiving notes is tantamount to receiving money, and proof of it will support a count for money had and received. *Cornwall*v. *Gould, ubi sup. ; Pearson*v. Parker, 3 N, Hampsh. R. 366 ; *Beardsley*v. *Root,*11 Johns. R. 464 ; *Floyd*v. *Day,*3 Mass. R. 403 If there had been proof only of a *sale*by the défendants, it must hat e been taken that they sold for money and received it. *Wells*v. *Ross,*7 Taunt. 403. This view of the case distinguishes it from *Gall*v. *Comber,*cited on the other side. The plaintiff would have prevailed in that case on a count for money had and received.

The statute of frauds does not reach this case; the credit was given to the defendants and to them alone, though the plaintiffs might have collected payment for the goods of the vendees. Roberts on Frauds, 216 to 225 ; *D’Wolf v. Rabaud,*1 Peters’s Sup. Court R. 476 ; *Perley*v. *Spring,*12 Mass. R. 297.

The opinion of the Court was afterward delivered by

Parker C. J.

In this case, it is stated in the report, that the plaintiff offered the testimony of witnesses on the stand, to prove that at the time when the defendants received the goods for sale, they agreed *verbally*to guarantee the sales.

This evidence was objected to, on the ground that by the statute of frauds a contract of guarantee, to be binding, must be in writing, and that parol evidence to prove it was not admissible.

Now this depends upon-the question, whether the undertaking of the defendants to guarantee the sales was original or collateral. The defendants were commission merchants, and as sitr.h they received the goods for sale in the way of their business. The evidence went to prove, that when they received the goods, they guaranteed the sales ; for this they had their commission, and in the mercantile language, it was a *del credere*commission.

The legal effect of such a contract is to make them liable at all events for the proceeds of the sale, so that according to *230some of the authorities, though denied by others, they may *3e charged on *indebitatus assumpsit,*as for goods sola to them And there seems to be no reason why they should not be so charged, if upon receiving the goods they became accountable, except that their liability is not fixed until a sale is made, and if upon credit, not until the time of payment arrives, the goods too being at the risk of the vendors, with ordinary care on the part of the factors, until the sale. But as the action car-not be sus'ained until after the sale has taken place, and then there is no legal excuse for not paying, the form of the action does not seem very material. Such is the nature of a commission *del credere,*as stated in 3 Chitty on Com. and Manuf. 220, 221, and in Paley on Principal and Ag. 35 ; *M'Kenzie*v. *Scott,*6 Bro. P. C. 280 ; *Grove*v. *Dubois,*1 T. R. 112 ; *Bize*v. *Dickason,*ibid. 285. Some of the principles laid down in these books are questioned in *Gall*v. *Comber, 7*Taunt. 559, and *Peale v. Northcote,*ibid. 478 ; but it seems nowhere to be required that a guarantee of this nature should be in writing,1 for the liability is admitted to be original,2 and although the vendor may in such case forbid payment to the agent if he is insolvent, and maintain an action for himself, which in other cases is held to be the distinctive mark of a collateral undertaking, yet in this particular contract such a privilege to the vendor is held not to alter the nature of his claim upon the factor.

We assume, from the terms of the report, that the evidence admitted proved such a contract as we have above described, and that the verdict of the jury was founded upon the fact so proved. But on the supposition that the three original counts were not sustained by the evidence", we have considered the objection to the subsequent counts allowed to be filed on leave to amend. They set forth, in different forms, the contract as proved, *viz.*a promise to guarantee the sales of the goods. This does not appear to us to be a different cause of action from that set forth in the first series of counts. They are at*231tempted to be charged for the same goods, in all the different forms, and in all as originally liable for them. The counts are consistent and for the same cause ; the variation is only in the form of liability. It is like the case of *Ball*v. Claflin, 5 Pick. 303.1

*Judgment according to verdict.*

1

 See Theobald on Princip. & Surety, 64; Chitty on Contr. (4th Am. ed.) 171, 403.

2

 But see *Morris*v. *Cleasby,*4 Maule & Selw. 566; 2 Kent, (3d ed.) 624, note *e.*

1

 See *Vancleef*v. *Therasson,*3 Pick. (2nd ed.) 14, note 1; Revised Stat. *c.*100, § 22 *St.*1836, *c.*273, § 3.