#### John Langley *versus*Thomas Sturtevant *et al.*

*Oct. 29th.*

*Oct. 30th.*

If a factor, having sold goods and received the price, unreasonably neglects to ren der an account of sales, an action may be maintained against him for the proceeds, without a previous demand, and notwithstanding he may have rendered an account before the action was commenced.

Where the consignor of the goods lived in Massachusetts and the factor in Alabama, the omission to render, within two years, an account of sales, was held to be unreasonable neglect.

Assumpsit. The first count alleged, that the defendants received of the plaintiff three trunks of boots to be sold and the proceeds of the sale to be accounted for and paid over. The second count was for money had and received. The trial was before *Morton*J. upon the general issue.

The writ was dated October 4, 1821. It appeared that the plaintiff, early in the spring of 1819, consigned three trunks of boots to the defendants at Blakely, in Alabama, to sell on commission. On September 27, 1821, they rendered to the plaintiff an account of sales, by which it appeared that the boots were sold as early as August and September, 1819, and that the net amount of the proceeds in the defendants’ hands was about 390 dollars. It did not appear that any of the goods were sold on credit. There was no evidence that .the plaintiff had ever made a demand upon the defendants to render an account of sales, or to pay over the amount due to the plaintiff.

The defendants contended that the action could not be maintained, for the want of proof of a demand ; but the objection was overruled, and a verdict was returned for the plaintiff. If the decision of the judge was wrong, a new trial was to be granted; otherwise judgment was to be rendered on the verdict.

*Leland*and *S. J. Gardner,*for the defendants,

cited *Collins*v. Benning, 12 Mod. 444 ; *Poulter*v. *Cornwall,*1 Salk. 9 ; 1 Comyn on Contr. 261 ; *Ferris*v. *Paris,*10 Johns. R. 285; *Topham*v. *Bradick,*1 Taunt. 572.

*Richardson,*for the plaintiff,

relied on *Clark*v. *Moody,*17 Mass. R. 145.

*Per Curiam.*

The objection made by the defendant is, that *221being a factor in a distant place, he was not obliged to remit the proceeds of the sales without orders from the consignor, and that a previous demand of the money was requisite to sustain the action. The general rule is so, when the factor conducts himself according to the usual mode of doing business ; but if he deviates, the principle may not apply. It has been argued that he is not obliged to render an account until requested. We understand the law to be otherwise. It is the duty of a factor to give notice, within a reasonable time, of his transactions. After selling, he should immediately transmit an account of sales to' the consignor, who will give directions as to the disposing of the proceeds. That the factor should be allowed to lie by for two years, without rendering an account of sales, is a novel principle. That is a negligence which deprives him of the right to set up as a defence, that no demand was made upon him to pay over the proceeds.1

*Judgment according to verdict.*

1

 See *Dodge*v *Perkins,*9 Pick. 368; *Colly v. Dudley,*Turner & Russ. 421; *Toney*v. Bryant, 16 Pick. 530 ; *Burton*v. *Collin,*3 Missouri R. 315; *Selden v. Beale,*3 Green. 178; *Christy*v. *Douglas,*Wright, 485; *Pearse*v. *Green,*1 Jac. & Walk. 135.