Not concurring altogether in the views expressed by the Chief Justice, delivered the following:
I concur in the opinion expressed as to the instruction asked by> *40plaintiff. The instruction given at the instance of defendant was, “ that no good or valid consideration for the undertaking of Porter, alleged in the declaration, was set up by plaintiff, or proved.” The sufficiency of the pleadings was not matter proper to be submitted to the jury, nor is it to be inferred (although the instruction is somewhat ambiguous) that the counsel either asked, or the Court gave, an instruction referring it to them. The preferable construction is, that the consideration alleged in the declaration was not proved. If correct in this view, the instruction was erroneous, as being directly at variance with the evidence in the cause. Such an instruction is against common law principles, and the Constitution of the State securing the trial by jury; so that a reference to the law of the Legislature of the State is, in my opinion, not called for, as necessary to the elucidation of the case. I leave it entirely out of the question. According to the view I take of the subject, the only point in contest was, as to the compliance of Porter with his engagement. He had undertaken to sell arrow-root for the plaintiff, and forwarded it for sale to Charleston. Was the shipment to this particular port in pursuance of, or in conflict with, his engagement with his principal ? In agencies of this kind, it is well settled that a factor should deviate as seldom as possible from the terms, and never from the spirit and tenor of the order he receives. His duty is to obey. If he sends commodities confided to him to a different place from that to which he was directed, they will be at his risk, unless the principal, on receiving advice of the transaction, acquiesce, and this whether the service was gratuitous, or for compensation. 1 Wash. C. C. R., 152, 453. 4 Wash., 551.
The evidence is contradictory. One of the witnesses deposing that the disposal of the arrow-root was to be at the discretion of the defendant; another that he was specially directed to send to New Orleans. According to the mode adopted by the English Courts, the jury would have been asked specially as to the facts, whether there was this discretion or not, and after ascertaining this, they would be directed to find accordingly in favor of defendant, or damages for plaintiff. The practice in America is different in some degree, though leading to a like result. The course here would be to give instructions, having a distinct reference to this discrepancy in the statement of the witnesses. The instruction, according to my *41view, should have been as follows : If the jury should be of opinion that the arrow-root was to be disposed of at the discretion of Porter, and acting upon that discretion, he sent it to Charleston, he is not responsible for the loss occasioned through the destruction of the vessel. If, on the contrary, they should find that the understanding between the parties was, that the arrow-root was to be shipped to New Orleans, or was to be subject to the instructions of plaintiff, and he directed it to be sent there, and defendant deviated by sending it to Charleston, the shipment was at his risk, and in case of loss,- he is responsible for its value. Such is the view I have thought proper to express in reference to the case, coinciding in the conclusion announced in the opinion delivered by the Chief Justice, but not entirely in the views declared.