The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1847-10-11
Inv IuteIIlQeuco.

SUPERIOR CouRr, Oct. Before Chief Justice Oak
ley-John Marteid rs George Dougiass.-This was an
action on the case promises and follows the
plaintiff provision merchant residing Chllicothe
in the State OF Ohio end the defendant is produce
mission merchant residing In this city In the summer Of
sl6 the plaintiff sent from Chiicothe to the defendant
large quantity Of produce chiefly pork and hams be
sold for him commission. Previous to at the time
o. sending the produce there was agreement either
to the mode or time of SALE of making advances
considerable advances, however, afterwards made
Ia the course of the fall and in the two frat winter
months, the provision market very dull prices
low and fuctuated according to the news brought
by each successive stesmer the psintiR regularly
advised Of the state Of the market on the 4th OF
December he wrote letter to the defendant in which,
after stating his opinion Of the prospects OF the trade
directed him to withdraw his property from the market
The following is extract from the letter and is per-
haps the turning point la the Thirty days will
tell pretty much what the stock will be- and with those
facts before me refsrpg to the former part OF the
Lottery VI have thought best for you my pork out
OF the market Tor the present as 1t cannot be sod-and
thirty days will make very important change In the
value OF the srtclen Soon after In another letter.
reiterated his instructions not to SELL the defendant
notwithstanding sold portion Of the pork before the
thirty days had expired. and on the l4th 18th Of
January following, sold large quantity and continued
to sell on until had sold the whole stock consisting OF
1861 barrels and advised the plaintiff cft furnishing
him at the same time with account Of sales In the
beginning Of February pork rose from s. and 50 to a
and S3 and the Sth 9th Of that month the plain
tiff wrote TO defendant acknowledging the receipt of the
account sales but refusing to be- bound by them and
market aud sell II for the then market price that he
would hold him accountable for the difference between
what he had sold 1t for and the price a which t would
sell on the 9Th or 9th OF February The defendant hav
ing before stated sold the pork could not ocourse
comply with plaintiff requisition The latter now seeks
TO recover the difference between So and 50 barrel Tor
which h sold, and $l2 and el3, which II would bring
on the 9th February, insisting that, notwithstanding
the advances made by defendant he could not sell Win
out first giving plaintiff notice and calling upon MN 10
refund the advances.
MIR. Curing, one Of the defendants counsel, moved
for a nonsuit on the following groundshrst, con-
cedug the letter Of the ih December TO have been
explicit order plaintiff to defendant, to withdraw
his pork from market and not to sell until further order
defendant was bound to have obeyed such instruc
tons because property had been consigned 10 him
without restriction upon the right OF sac moreover de-
endant having made advances upon the faith OF the
alignment cenformable with such power fsae Secondly
that plaintiff had right or power TO control tie sale
without rendering defendant the of
yances Thirdly that upon sound construction OF he
Der out OF the market not peremptory, but left
discretion In defendant TO withdraw property from
market not, es IL should seem judieous to him and
that II there was any amo'gu la the letter by which
defendant might reasonably be misled the
must fall upon pl ntn Alter counsel had concluded
their arguments tor and against the motion for q
suit the Chief Justice said he equally balanced be-
tween the arguments both Sides his practcs was In
huch cas- 70 let the cause To the jury reserDg the
legal questions for the consideration OF tbs full court
that being his practice he would let this 70 the
jury reserving however the questions raised oy dsfsu
his associster thereafter The defence then
SUn- Ito which consisted OF the correspondence
the defendants counsel contendiDg that under
the law In relation TO principal and factor the
Instructions contained in the letter Of the l4th IT
December not binding the defendant where he
him for thirty days, which expired on the lath Of ia