#### Joshua Dodge *et al. versus*William Tileston *et al.*

in an action upon an account annexed to the writ, one item in the account was a charge of the excess of expenses on certain goods of the defendant sold by the plaintiff as factor, over and above the proceeds of the sale. At the trial the plaintiff was permitted to strike this item out of the account, although the defendant objected, and the defendant was not permitted to avail himself of the credit given him in the plaintiff's account of sales,unless he would admit the correctness of the charges against him in the same account, some of which he contested. The defendant had not filed an account in set-off. It was *held,*that this course of proceedings was incorrect, as it would give the plaintiff the advantage of his charges without proving them, and would deprive the defendant of the benefit of a set-off 5 and it was ordered that the item struck out should be restored.

in an action by a factor against his principal, to recovera general balance, the plaintiff’s negligence in selling the defendant’s goods may be given in evidence in mitigation of damages, and to bar all charges for commissions, and all charges for interest, storage, &c. caused by the plaintiff’s negligence.

Assumpsit for the balance of an account anexed to the writ, for goods sold and delivered, work and labor done, &c. Trial before *Morton*J.

The plaintiffs were commission merchants at Marseilles, in France ; the defendants were a commercial house in Boston. In December 1824 the defendants shipped and consigned to the plaintiffs at Marseilles, a large quantity of cassia lignea, *334Santa Martha wood and Nicaragua wood for sale. Orders were given by the defendants to the plaintiffs to purchase and ship to the defendants various articles of merchandise, in anticipation of the proceeds of the merchandise shipped by the defendants to the plaintiffs. The shipment to the plaintiffs was received by them in February 1825. The merchandise was put in entrepot, and at some time in 1825 the cassia lignea and Santa Martha wood were sold. The Nicaragua wood remained in entrepot about two years, and, as the plaintiffs’ witnesses testified, was unsaleable, and the plaintiffs were una ble to dispose of it, although they used every effort for that purpose. At this time it became necessary, by the laws of France, to export it or take it into the country for consumption ; whereupon the plaintiffs, without the orders of the defendants, exported it to Nice. It was afterwards brought back to Marseilles and again put in entrepot, where it remained until some time in 1829, when it was sold at such a loss, that the expenses and charges, including those of exportation to and from Nice, exceeded the proceeds of the sales.

The plaintiffs, in March 1825, shipped to the defendants a part of the merchandise ordered, which was received by them.

The plaintiffs charged the defendants in account, with the merchandise purchased and shipped to them by their orders, and gave them credit for the net proceeds of the sales of the cassia lignea and Santa Martha wood. The correctness of this charge was admitted by the defendants..

The plaintiffs charged the defendants with the sum paid for freight and primage on the merchandise shipped to the plaintiffs, and this item of the account was proved by certain depositions.

The plaintiffs then charged the defendants with a balance of interest to December 31, 1825, and struck a balance of the account. This balance they carried to a new account, and charged the defendants with interest upon it to June 15, 1830, a few-days before the commencement of this action.

The plaintiffs also charged the defendants with the excess of the charges and expenses upon the Nicaragua wood over and above the proceeds of the sales, and with interest thereon

*335The foregoing charges form the claim in the account annexed to the plaintiffs’ writ.

On the trial the plaintiffs made no claim for the two last items in their account, but on the contrary, they struck them out of the case and entirely abandoned them; to which the defendants objected.

Several witnesses testified that the charges of interest in the plaintiffs’ account were according to the usage of merchants at Marseilles.

The plaintiffs here rested their case.

The defendants offered to prove, that the plaintiffs had express orders to sell immediately and not subject the goods to any charge for storage, and that it was agreed between the parties that the proceeds of the goods consigned to the plaintiffs should go towards payment of the goods ordered and sent to the defendants, and that the plaintiffs might have sold the goods consigned, immediately after their arrival, without subjecting them to any charge for storage, and so as to have put the plaintiffs in funds sufficient for the shipment made to the defendants and all other charges and expenses, and left a balance-in favor of the defendants ; and that the plaintiffs might at any time within a year after the receipt of the goods, have sold them at a profit, or so that the net proceeds of sales would have paid the plaintiffs for all their advances, charges and expenses up to the time, and left a considerable balance in favor of the defendants. And the defendants contended that the evidence was admissible to show, 1. That the plaintiffs had no cause of action against the defendants ; and, 2. That the plaintiffs could not maintain their action for the charge of interest and storage.

The defendants contended that they ought to have credit for the sales of the Nicaragua wood ; and that this claim should be allowed in the present case as a defence, although no account had been filed in set-off.

The judge ruled, that as no claim was made by the plaintiffs in respect to the Nicaragua wood, the defendants could not use the account of the sales thereof so far as to apply the amount of sales in defence of this action, and at the same time to reject the charges on that wood contained ir the same ac*336count; that they might use the account in defence of ¿he action, or not, at their pleasure, but if they did use it, they must take the whole of it.

*March 26th*

*March 26th.*

The judge also ruled, that the other evidence offered by the defendants as above stated, was inadmissible.

The plaintiffs denied all the foregoing allegations of the defendants, and alleged that the Nicaragua wood could never have been sold without a total loss ; also, that if all the defendants’ suggestions were true, they formed a ground for an action by the defendants against the plaintiffs ; and the charges of the defendants against the plaintiffs, whether of negligence or fraud, could not avail them in this manner as a defence to the present action.

A verdict was taken for the plaintiffs. If the decisions of the judge were right, respecting the evidence offered by the defendants, judgment was to be entered upon the verdict; but if they were wrong, a new trial was to be granted.

*Rand*and *Fiske,*for the defendants,

insisted that in actions by an agent, factor, &c. against his principal, to recover for services, or for expenses paid by him, the defendant may give in evidence the negligence of the plaintiff, either in defence of the action or in reduction of the plaintiff’s claim to a *quantum*meruit, according to the circumstances of the particular case. *Denew*v. Daverell, 3 Campb. 451; *Montriou*v. *Jefferys,*Ryan & Moody, 317*; S. C. 2*Car. & Payne, 113; *Hamond*v. *Holiday,*1 Car. & Payne, 384; *Beecker*v. *Vrooman,*13 Johns. R. 302; *Grant*v. *Button,*14 Johns. R. 377; *Farnsworth*v. *Garrard,*1 Campb. 38; *Basten*v. *Butter, 7*East, 483; *Fisher*v. *Samuda,*1 Campb. 190; *Duncan*v. *Blundell,*3 Stark. Rep. 6; *White*v. *Chapman,*1 Stark. Rep. 113; *Poulton*v. *Baltimore,*9 Barn. & Cressw. 259; *Caswell*v. *Coare,*1 Taunt. 566.

*Peabody*and *Watts*for the plaintiffs.

Wilde J.

delivered the opinion of the Court. The first objection made to the proceedings at the trial is not probably of much importance to the parties, but as it relates to the discretion of the Court in allowing amendments, it is not undeserving of attention. , The plaintiffs on the trial not being prepared, I suppose, to prove the two last items in the account *337annexed to their writ, struck them out, notwithstanding the objections thereto by the defendants ; and the defendants were not allowed to avail themselves of a part of the credit given on account of these items, unless they would admit the correctness of the charges in the items stricken out. This operated unfavorably to them, and gave to the plaintiffs the advantage of their charges without proving them. And by this course the defendants were deprived of the benefit of a set-off. If these items and credits had been omitted in the original writ, the defendants might and probably would, have filed an account in set-off, embracing these credits. There seems to be no good reason for this course of procedure, and we think the account annexed to the writ should be restored to its original state. Courts will not encourage the splitting up of accounts consisting of various charges, as it tends to produce a multiplicity of suits, which the law discourages. To allow the plaintiffs to withdraw a part of their demands, thereby opening the door for a new action, does not appear to be reasonable, under the circumstances of the case.

In the defence it was offered to be proved, that the plaintiffs had orders to sell the goods consigned, immediately, and that they might have been sold accordingly for more than sufficient to put the plaintiffs in funds to the amount of their shipments and all costs and charges. This evidence, we think, should have been admitted. It is certainly good in mitigation of damages, and to bar all charges for commissions, interest, storage, and other charges if any there be, which were caused by the plaintiffs’ negligence and breach of orders.

In the case of *Basten*v. Butter, 7 East, 479, it was decided, that in an action for work and labor done and materials found, proof that the work was not worth so much as the plaintiff claimed, was admissible, although the plaintiff only claimed the price for which the work was agreed to be done. It was held to be competent for the defendant to show that the work was not faithfully done according to the contract. Mr. Justice *Lawrence*remarks, that it would be incumbent on the defendant, in such a case, to give notice of his intention to dispute the goodness or value of the work, and that with such

*338notice, the defendant should be let into his defence to show rea^ value °f the work.

*In Farnsworth*v. *Garrard,*1 Campb. 38, Lord *Ellenborough*maintains the same principle, and he remarks that he had had a conference with the judges on the subject, and tha* the rule was settled, that in an action for services the plaintiff’s negligence may be proved against him to reduce the amount of his demand, and if there was no beneficial service there should be no pay.

And in *Montriou*v. Jefferys, 1 Car. & Payne, 113, it was held that an attorney could not recover for expenses incurred by his own inadvertence and negligence.

So in *Beecher v. Vrooman,*13 Johns. R. 302, it was laid down, that deceit in the sale of a chattel may be given in evidence in an action for the price, either in bar or in mitigation of damages. *Van Ness*J. says this is the true as well as a salutary rule, and well calculated to do final and complete justice between the parties the most expeditiously and least expensively.

In *King*v. Boston, Middlesex sittings after Easter 1789, 2 Com. Contr. 363, Lord *Kenyon*laid down the same doctrine, in an action for the agreed price of a horse sold.

In *White*v. Chapman, 1 Stark. Rep. 113, it was deter mined that a factor guilty of gross negligence or misconduct, in selling the goods of his principal, could make no deduction for his commissions.

There are other decisions which are somewhat contradictory, and which seem to confine this kind of defence to actions on a *.quantum meruit*for services ; but the weight of authority is opposed to such a limitation, as well as the reason of the rule. But if such a limitation were admitted, still the evidence ought to be received in reduction of the charges for commissions, and for labor and services. We adopt however the more liberal rule, as being best adapted to the general policy of the law. The question for a time may have ranked in the class of legal uncertainties, but it appears to us at present to be settled'on reasonable and satisfactory principles.1

*New trial granted.*

1

 See *Parker*v. Brancker, *22*Pick. *40; Jones*v. *Kennedy,*11 Pick. 125.