#### Guy *against*Oakley.

•Where a consignee sells the frfncipa/ under madeasrÍltiiout ils “principa”! «auueamouni agatosdtbeasedeb? ■pifncijai? hthe fngSbe>”cfnd “he scope of hia agency, is liable lo bis principal for the value of the goods; and, if he had directions from the. consignee to sell them only at a certain price, which price he obtained *by*making th$ before-mentioned agreement, which was more than the ordinary market price, he will be liable according to the at which they were sold..

THIS was an action of assumpsit, brought to recover th& . , _ , * ' - , . . , . . Price °* thirty-three kegs of tobacco belonging to the plaintiff,. aud consigned to the defendant for sale,

The tobacco in question was, in *October,*1813, consigned by q1G plaintiff, a merchant residing at *Richmond in Virginia,*to. the defendant, a commission merchant in *New-York,*to he sold on commission. The plaintiff, in a letter to. the defendant, dated *November*1, 1813-, says, that he was in hopes that the _ -11 i _ , tobacco would sell for 20. cents. and that two kegs oi it were ' *333of a quality that sold in *Richmond*for SO cents a pound; “ still,” he adds, *“*you must do the best with it you can, and I shall be satisfied.’’ In a subsequent letter of the plaintiff to the defendant, dated the 14th November, 1813, written in reply to a letter of the defendant, in which he remarks upon the quality of the tobacco consigned to him, the plaintiff says, “ I do not wish the part which was considered by you as the worst, sold for less than IS cents, and that which is good at 18 to 20 cents. These prices I think may be obtained in the winter, and I do not like to lose by an article after taking so much trouble to get.it to market.” This letter the defendant answered on the 20th *November,*1813, promising to observe the plaintiff’s instructions.

On the 9th *November,*1813, the defendants sold two kegs of tobacco at 18 cents per pound, and on the 1st of February, 1814, another keg at IS cents per pound, for all of which the defendant has been paid. On the 12th of *February,*1814, the defendant sold and delivered to a purchaser, the residue of the tobacco, part of it at 18 cents, and part at 15 cents, amounting in the whole to 778 dollars and 71 cents, under an agreement made, without the knowledge or consent of the plaintiff, with the purchaser, that the amount of such sale should be credited on a certain promissory note made' by the plaintiff and held by the purchaser, as agent of one *John*Parkhill, for 1,099 dollars and 20 cents; in consequence of which the purchaser allowed a price higher than the then ordinary market price. *Parkhill*had since offered to allow the plaintiff a credit on the note to the amount of the sale, which the plaintiff refused.

A verdict was taken for the plaintiff, subject to the opinion of 'the court on the above case,

*P. W. Radcliff,*for the plaintiff.

*T. A. Emmet,*for the defendant.

*Per Curiam.*

The plaintiff must have judgment upon the verdict as found, without any deduction. The tobacco was put into the hands of the defendant as a commission merchant, with instructions not to sell under a certain price. The defendant, in his character of commission merchant, had no authority to make any stipulation that the avails of the tobacco should be *334credited upon the plaintiff’s note.,,which .was held by *ParkhilU*He probably supposed -he w-ás -doing an act which would meet the approbation arid sanction of the, plaintiff,,.: But this wás aházard; he-took upon himself; it-wae not within the scope of his agency. If the. sale had been made by the defendant;'únder -his first ihsttuctions, by which hé was vested with discretionary powers, as, to. price,' there would, under .-the circumstances -of the case, be sópie- strong reason ,for malting'him responsible Only for the market price of the tobacco* He, ñó doubt; acted in-good faith.;. and, as. he- supposed, for the best interest of his principal.' But the. plaintiff,, by his subsequent-, orders, jimited the defendant,.-as to the.price, and he had- no right to sell.under it ; and behaving, in fact, sold at such price, he.mpst be responsible to, the plaintiff' for the amount of sales ¡it that rate, • *:*- : .

Judgment-forThe plaintiff*..