[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 233
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 234 Whether the barley embraced in the contract was to be of a denomination called merchantable, or of a higher quality called prime, is a question upon which the evidence was conflicting. Had the word prime in the defendants' memorandum been omitted, the inference against the defendants, from the whole evidence, would have been increased, and interlined as it was, so faintly that it escaped observation by the referee, was (being unexplained) a matter of so great suspicion that, considered in connection with the other evidence in the case, we cannot say that the referee was not entirely right in thinking that it would not, had he discovered it, have changed the result. Be that as it may, the question as to whether the defendants were prejudiced by it is not properly here. The judgment appealed from was perfected before it was made to appear that the interlined word had been unobserved by the referee. The judgment only is appealed from. The motion for a reargument was made and denied subsequent to the judgment, and with that, so far as the record shows, the defendants are content. (See Selden v. Del. Hudson CanalCo., 29 N.Y., 634, 637.) The *Page 236 purchase of the barley by Coryell as the employe of the plaintiffs, and with their funds, to be remunerated for his services by receiving one-half of the profits that should be realized from it on a sale made by the plaintiffs, did not constitute him a partner so as to render him a necessary party plaintiff. (Burckle v. Eckart, 1 Denio, 337, 341, 342; affirmed 3 N.Y., 132, 137, 138.) The plaintiffs' equitable lien upon the barley, as a security for their damages occasioned by the defendants' refusal to receive and pay for it, as well as their right to sell it and apply the avails, so far as they would go, to satisfy their lien and maintain their action for the balance, is not at this day involved in doubt. (Bement v.Smith, 15 Wend., 193, 197). In making the sale the vendor is the agent of the vendee to sell the property, and should sell it fairly and to the best advantage. (Pollen v. Leroy,30 N.Y., 549, 557; Messmore v. The N.Y. Shot and Lead Co.,40 N.Y., 422, 428, 429.) Notice of the time and place of making the sale was unnecessary. (Pollen v. Leroy, supra; Messmore v. TheN Y Shot and Lead Co., supra.)
A question is raised whether, upon any exception taken at the trial, the defendants can now insist that the sale should have been made at Lodi, and not in the city of New York. Passing over that question, I will assume that the question of the plaintiffs' right to sell in the city of New York is legitimately before us. The barley was a security in their hands, affording sure means of enforcing payment for so much as it is worth, deducting expenses; for the excess over and above the amount for which it should be sold, they were warranted, from the conduct of the defendants, in refusing to receive and pay for it, believing that it would be the subject of litigation. The pleadings show that the defendants were non-residents of this State; to recover the excess, a litigation in a foreign State, attended with greater inconvenience and expense than a litigation at home, might have been a necessary result. If sued for and collectible here its payment might, as it already has been, greatly delayed. The plaintiffs, therefore, as well as the defendants, had an interest in obtaining the best price at *Page 237 which it could be sold. New York is the great market for the surplus products of other portions of the State. The referee has found that the plaintiffs made the best efforts they could to sell the barley, but finding the market dull, concluded in good faith to try the New York market; and that they did so in the following month, after the defendants refused to receive and pay for it, and as soon as that market was accessible by canal, and shipped for that city, and upon its arrival there sold it in the usual way and for the best attainable price. The place of sale is not necessarily restricted to the place where, by the contract, the vendee was bound to receive the property. The vendors having, as they should, the interest of both parties in view, had the undoubted right, as a means of guarding against loss, to procure an insurance upon it, and within the rule that would justify such reasonable outlay to save it from loss, they should be permitted to exercise a reasonable discretion as to the place of sale, and to exercise it within a reasonable time.
As a general and well understood proposition, the tendency of the surplus products of this State is to the New York market. The referee has in substance found as a fact in the case, that each of these rights was not only reasonably exercised, but was exercised in good faith. This, within the principle settled inDustan v. McAndrew (44 N.Y., 72, 79), is all that was required. And although the sale was not conducted in the name of the defendants, it having, as the referee has in substance found, been conducted for them, and no possible prejudice to them on that account being suggested or discovered, none is found for holding it invalid.
The judgment appealed from should be affirmed.
All concur; HUNT, C., on the ground that there was no sufficient exception raising the question as to plaintiffs' right to sell in New York.
Judgment affirmed. *Page 238