#### William F. Heins, plaintiff and respondent, *vs.*Charles A. Peine, defendant and appellant.

Although the accounts between consignor and consignee are adjusted, up to a certain period, and a specified sum is agreed to be paid by the former *to*the latter, tor commissions and advances, the consignee is entitled to a lien upon the goods, not only for that sum, but for interest upon advances subsequently made by him. Hence a tender of the sum so agreed to be paid, without including such interest, will not entitle the consignor to recover possession of 'the goods.

(Before Robertson, Ch. J., and Jones, J.)

Heard and decided June, 1868.

The defendant’s business is that of selling goods on com-.. mission. In January, 1865, one Zingsen consigned certain goods to the defendant. The terms upon which the goods were consigned were, according to Zingsen, that if the defendant sold the goods at as great a profit as he represented that he had sold one case, he (Zingsen) would give him $500; but according to the defendant they were that he, the defendant, was to have a commission of five per "cent on the sales, and Zingsen guarantied that the commission would amount to at least $500 in the first year.

Between January, 1865, and April 21, 1865, the defendant sold, at auction, a small bill of the goods, amounting to $300, and made advances to Zingsen, upon the goods, as follows: February 6, $500; March 30, $500; April 5, $700; April 21, $400. On the 21st April, Zingsen and the defendant having each become dissatisfied, they, stated the account between them, and the defendant agreed to take $250 for his commissions, disbursements and interest on his advances. The account thus stated showed a balance of $2050 in favor of the defendant, due May 21, 1865.

The defendant swears that he agreed to take the $250 only on condition that it was paid that'day, and stated that if he waited until the next day he should charge $500. The plaintiff, who negotiated the settlement between Zing-*421sen and the defendant, swears that the defendant, in order to settle the matter, agreed to make up his account due on the 21st of May at so much, and put it down in pencil. The stated account was put in evidence, and omitting the heading, except the date, was as follows:

1865. “April 21st, 1865. Feb. 6. To cash advanced on consignment, $500 Mar. 30. 66 66 66 500 April 5. 66 66 66 700 “ 21. 66 66 66 400 To rent and salary,...... . 500 $2600 April 4. By cash T. E. Halsey & Co. . . , 300 #2300 (In pencil) ......... . 250 (In pencil) (In pencil) Due May 21st, 1865.” $2050

Both the plaintiff and Zingsen swear that they saw the defendant write in pencil the words and figures, “ Due May 21st, 1865.” The defendant swears that the date is not his handwriting.

The only other evidence bearing on this settlement is the testimony of Zingsen/ who swears, “Mr. Heins said to Mr. Peine, we will give you one half (that is, of the $500,) if you give us the goods and a specified account of what you have done, and Mr. Peine said he would do it.”

At the time of making this settlement, Zingsen transferred the balance of the goods remaining unsold, to the plaintiff, who thereupon consigned the same to the defendant to be sold to the best advantage for cash, but not forced. No express agreement was made between the plaintiff and defendant as to commissions, compensation or interest on advances. Under this consignment the defendant proceeded until the 12th of August to make sales at private sale and *422also at auction, under the plaintiff’s directions, and received the proceeds of the sales, and made an advance of $230 to the plaintiff.

On the 12th of August the defendant made out the following account:

1865. Eeb. 6. To cash loan . . ........ . $500' 00 Mar. 30: “ .......... 500 00 April 5. “ .......... 700 00' “21. “ .......’. . .■ 400 00 Rent, salary and interest ..... 500 00 *1865.*Apl. 4. “ 26. ■May 12. ' “ 19. 66 66 June 1. “ 12. “ 16. July 19. Aug. 4. “ 12. $2,600 00 By cash from T. E. Halsey & Co. $300 00 “ Curtis & Co. . . 206 58 “' Same .... 64 08 “ Same .... 43 65 “ T. E. Halsey & Co. 102 94 “ 63 doz. spectacles 78 75 “ T. E. Halsey *& Go.*230 03 “ ' Hallgarten&Herzfeld . . . . 718 51 *“*T. E. Halsey & Co. 357 36 “ Same .... 202 94 “ Same . . . . 148 80 2,453 64 •$146 36 June 30.- Paid W. F. Heins .... 230 00 Aug. 12. Paid cartage and laboP ... 3 64 233 64 To balance New York, Aug. 12th, 1865. $380 00 C. A. Peine.

Between the 12th and 28th of August, the plaintiff tendered to the defendant .$130, and demanded the goods remaining unsold. The defendant refused to deliver them unless he was paid $380. Thereupon the plaintiff brought this action of claim and delivery. The defendant, after *423several denials of the allegations in the complaint, sets up a lien on the goods, to the amount of $380 and interest from August 12, 1865.

The judge charged the jury, among other things, “If you find that $250 (referring to that sum in the stated account) was full compensation, the plaintiff is entitled to recover.” To which the defendant excepted. He also charged: “ If you find the agreement was that $250 should be received as full compensation, and also find that the' plaintiff demanded an account of the defendant, and offered to pay him all he was entitled to, that is sufficient.” To which the defendant excepted.

The jury rendered a verdict for the plaintiff, and assessed the value of the property at $3500. A motion for a new trial was made, and denied, and judgment was then entered, on the verdict.

The defendant appealed from the order denying his motion for a new trial, and also from the judgment.

*John J. Townsend,*for the appellant.

I. The verdict is wrong, because the defendant was entitled to more than $130, which was tendered after August 12, 1865.

II. Upon the evidence, a verdict for the defendant was possible. Under the charge, a verdict for the defendant was impossible. At folio 78 it was charged,' “ if the agreement was to take $250 as compensation, you will say so.” At folio 82, “ if you find the agreement was that $250 should be received as full compensation, that is sufficient.” At folio 84, “ if you find there was an agreement to receive $250 as full compensation, that ends it.” As the agreement to accept $250, 21st May, 1865, is an undisputed fact, and consistent with the defendant’s claim for compensation afterwards earned, and to interest afterwards accruing, the charge in the particulars here excepted to is equivalent to a direction to the jury to find for the plaintiff.

IH. The statement of facts presents the evidence in regard *424to the original agreement between Peine and" Zingsen. Peine claimed that he was to have at the least $500 per annum, Zingsen claiming that he said, “ I could give you that if you go on in that way.” Neither claims that the right to receive $500 depends on a sale of all the goods. It was so charged. The defendant was entitled to have the original agreement properly submitted to the jury, for all his rights depend upon subsequent modifications of that agreement. It could aid the jury in estimating the value of his subsequent services.

IV. The defendant was entitled to have the value of his services, and of the use of his money after 21st April, 1865,

. estimated. He made that request. The charge refused this and fixed a limit not to be passed, to wit, 21st April, 1865. This was in effect directing a verdict for the plaintiff.

V. The charge from folio 79-to 81, it is claimed, was even more injurious to the defendant. At folio 79, the court stated, “there is no evidence of any services after 21st of April, 1865.” A juror interposed: “ I understand that the $250 was for services up to that time—and Mr. Heins, after he took a transfer, &e., left the goods in possession of Mr. Peine.” The court: “Not at all,” &c., and proceeded to state, in effect, that in April the defendant agreed to retain the goods until August, to send them to auction from time to time,' (without compensation,) pay himself and hand over the balance to the plaintiff; at all events, that he did nothing for which he would be entitled to charge. It will be vain to look for any evidence of such an agreement. It was to accept a certain sum on 21st May, 1865. An indefinite future was not then provided for. The juror was right.

■ VI. To this very emphatic limitation of time, 21st April, 1865, is the submission to the jury of the value of the defendant’s services to be referred. As at folio 82—“ What is a fair compensation to the defendant,” &c. And at folio 84— “It is simply-a question what'his services and advances are worth.”

VH. The charge at folio 83, “ that nothing was earned *425by the defendant by way of commission, except on the $78.75,” must have misled the jury, and made them believe that the defendant’s claims to any important sum were without foundation. &

Yin. The charge that, “ under the agreement the goods ought to have been sold without sending them to auction,” must have misled the jury. • As the agreement is the entire compact, the jury must have been induced to think that the defendant violated it when he sold goods at auction. But he was directed to sell at auction, in writing, May 3, 1865, and all those sales wer'e authorized by the plaintiff.'

IX. The charge, “Nor is the defendant entitled to $500 by virtue of carrying out the original agreement;” and at folio 77—“I understand the condition of that agreement to be that the goods were sold in the ordinary way by the defendent,” is wrong, because it was not claimed by either party that there was any such condition, and whether or not the plaintiff is entitled to the sum specified, he is entitled to have the agreement properly presented to the jury, as a part of the history of the case—as an agreement modified but not violated—and useful at least to aid in forming an estimate of the value of his services.

X. The case was presented to the jury as if the defendant had agreed on 21st April, 1865, to make no charge in any event in the future. This is very plainly a misconception of the case, and very injurious to him. There could be no motive in making such an agreement; if he were not paid on 21st May, 1865, it was uncertain when he would be, or how much the single item of interest would amount to, irrespective of commissions, labor, storage, &e.

*0. Bairibridge Smith,*for the respondent.

Jones, J.

There is not the slightest evidence upon which a verdict finding either that the $250 was full compensation or was agreed to be received as such, could be based. On-the contrary it is clear that the $250 was adjusted and agreed *426upon as full compensation for all disbursements and commissions made and earned up to April 21, and for interest on advances up to a period not extending beyond May 21st, only. Upon this there is no conflict of testimony. Therefore the instructions excepted to were erroneous. They were instructions that the jury might find certain facts to be established, to support which there was not only no evidence, but which were controverted by all the evidence in the case, and that upon the finding and facts they should render a verdict for the plaintiff.

'But although these instructions are erroneous, still they • would not call for a new trial if the court clearly saw that they could not by any possibility have prejudiced.the defendant.

If the evidence fails to show that the defendant has a lien for disbursements made, or commissions earned, since the 21st of April, or for interest on advances, accruing since May 21st, for an amount exceeding the sum tendered, he is not prejudiced. The evidence shows that since the 21st of April some sales were made upon which a commission would be chargeable. True there is no proof either of what the customary rate of commission is, or of any express agreement as to commissions or compensation, or of the value of the service. I do not, however, consider it necessary that such proof should have been given, since any commission on these sales, no matter how small, would increase the amount for which the defendant had a lien, beyond the sum of $130 tendered. It is not, however, necessary to decide this point, for the interest accruing on the advances. subsequent to May 21st, in whatever way the same maybe calculated, with reference to the application of moneys received from sales of goods, increases the amount for which the defendant has a lien, considerably above the sum tendered.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

*427Robertson, Ch. J.

The jury were permitted on the trial of this action to speculate on the value of the defendant’s services in making advances upon the goods placed in his hands for sale; storing and bestowing labor upon them, without any evidence on which to act; for the defendant furnished no evidence of the value of such services rendered, either to Zingsen'or the plaintiff; preferring to rest his claim solely on the special contract made between himself and the former, when the goods were originally placed in his hands, as having been carried out by him fully.

There was no conflict between Zingsen and the defendant, in their testimony, as to the terms of such original understanding between them. The latter testified that the former agreed “ to guaranty him $500 the first year, which” “he was to pay if the defendant did *not make that amount at jive per cent commission.”*

The former did not deny this, but on the contrary admitted that he told the defendant that if he could sell all the goods as he had sold one case, he “ could afford to give him $500.” This clearly did not make the defendant’s compensation depend upon the amount of his actual sales, for under such an arrangement, if he sold any article, however insignificant, he was to be entitled to his $500, provided he continued his exertions to sell; nor did it restrict him as to the mode of effecting the sale, or require him personally to make the sales, provided they were effected through his instrumentality. Such an understanding amounted, therefore, to an undertaking by the defendant to use his best efforts to sell such goods as Zingsen should consign to him for sale during a year, and a promise by Zingsen, if he did so, to pay him $500, and as much more as five per cent on the amount of goods actually sold by him should exceed that sum. Five per cent on the value of the goods first delivered to him would only have been $325. Such an agreement did not deprive the defendant of the lien to which he was entitled upon the goods in his hands, for the amount of such compensation, the moment he entered upon his duties as *428Zingsen’s factor. . It is true such an agreement made with a clerk or salesman in the employ of Zingsen, while he retained possession of the goods, would create no lien; but he parted with the possession to.the defendant, as *his factor,*to employ all the facilities he possessed for making a sale, and subsequently procured advances from him thereon. There was no pretext on the trial that the defendant did not perform his part of the contract, nor was his testimony contradicted in regard to the unsaleability of the goods being the cause óf his inability to perform it. No reason, therefore, is presented why he should not, and did not, retain such lien for his $500 until the 21st of April, 1865.

On the last mentioned day, the defendant gave Zingsen a statement of the amount due him, in which was included an item of $500 for “rent and salary.” Zingsen did not object to this upon the ground that no goods had been sold, but immediately went to the plaintiff, who told the defendant they would give one-half of such sum if the defendant would give them “ the goods and a specified account of what he had done.” „ The defendant replied (as he testified without contradiction) that he would do so *provided the amount due him was paid that day.*It was not so paid, and the goods remained in his hands, to be sold under special instructions from' the plaintiff instead of Zingsen. Many were sold before the 12th of August, when, after many requests, the defendant sent the plaintiff an account of the amount due; in which an item of $500 was again charged for “ rent, salary and *interest.”*Up to that time the defendant had received no interest on any of his advances, amounting to $2200, beginning in February previous, although it continued to run on after, the 12th of April. From the testimony of the plaintiff it would seem, that the. defendant’s claim for one-half of the $500 had not been adjusted but was still in dispute, and the plaintiff repudiated all connection with it. He acknowledged the justice of the defendant’s claim for the other $250, by admitting that he owed a balance on the account, of $130. He *429must have so acknowledged it, as being the sum agreed to be allowed on the 12th of April previous for *“ rent and salary”*alone, and, at most, for *interest*to that date, and not as including subsequent interest, of which nothing was said. The defendant was entitled to that interest, which was considerable, and the plaintiff did not tender the amount, or offer to pay it. The defendant’s lien for that, at all events, therefore, still remained unimpaired. There is no evidence before us to show any modification of the original contract, or any agreement by the defendant to accept $250 in full satisfaction of his claim *unconditionally.*The mere memorandum in pencil on the defendant’s statement of the 12th April of *“*due 12th May,” which he testified was not in his handwriting, but which the plaintiff' and Zingsen testified they saw him write, amounts to nothing, without some evidence that it was the understanding of the parties; at all events, if it even established that the condition was that the amount should be paid at that date, neither of the other parties then paid it, and the defendant went on endeavor-? ing to. make sales, as he was bound to do, under his original agreement, in order to earn the stipulated compensation.

I do not see from the evidence, therefore, how the defendant lost his lien for his compensation of $500, or how his claim could only be a *quantum meruit,*without any evidence of what his services were worth, except the original agreement between the defendant and Zingsen. Nor do the sales at auction appear to have been a breach by the defendant of his agreement; he rendered his account to both Zingsen and the plaintiff of such sales, without objection, and the latter, by letter, on the 3d of May, 1868, even requested him to send some of the goods to the same auctioneer to sell, which he did, and their proceeds were included in his statement to the plaintiff in August.

The learned justice, however, before whom such action was tried, charged the jury, among other things, that the defendant “ was to receive $500 on a sale of *all the goods,*as ■■a consideration for their sale and his services in the matter *430also ‘that after the transfer of the goods to the plaintiff there was “ no evidence that there was any thing further done” by the defendant to the goods “fór which he would be entitled to charge;” also that “nothing was earned by” the defendant “by way of commissions, except on” a small amount of goods ($78.75) sold before such transfer; also that it was “simply a question of what” the defendant’s “services and advances were worth, unless they found there was an agreement that he should receive $250 as full compensation,” which, if they did, “that ended it;” also that “ if they found $250 was full compensation, the plaintiff was entitled to recover;” that the defendant was “ not entitled to $500 by virtue of carrying out of the original agreement. He was entitled * * to what his services were worth;” also that he understood that the *condition*of the first agreement between Zingsen and the defendant was “ that the goods were *to be sold*in the ordinary way *by the defendant,”*and that “ under the original agreement the goods ought to have been sold without sending them to auction.” To each of which instructions separate exceptions were taken by the counsel for the defendant.

These views of my learned associate are so diametrically opposite to those which I have before expressed that I am compelled, reluctantly, to differ from him. I cannot consider that an actual sale of all the goods was necessary to entitle the defendant to his compensation; or that under the "original agreement he was bound to sell the goods himself; or that it was a mere question of what the defendant’s services and advances were worth; or that an agreement to receive $250 as full compensation, ended the controversy; or that the plaintiff, without a tender of the interest due, was entitled to recover, if $250 was a full compensation. On the other hand, I cannot hut think that there was evidence in the case that something was done by the defendant after the transfer to the plaintiff, for which the former was entitled to charge; that something was earned by him besides five per cent on $78.75, and that he was entitled to *431$500 if he carried out the original agreement and did not agree to accept a less sum. I cannot, therefore, help coming to the conclusion that such instructions were erroneous, and that a new trial should therefore be had.

I therefore concur with my associate in thinking that the judgment should be reversed and a new trial had.