The question presented by the refusal to comply with the first request to charge the *16jury, is as to the nature of the contract between a factor and his principal, when acting or selling under a del credere commission.
It being conceded, in this case, that the defendants were acting under a del credere ■ commission, the court was asked to charge that the plaintiffs could not recover without showing that they had had recourse to Taggard & Co.; that is, without showing that they had endeavored to collect the money of Taggard & Co., tó whom-the plaintiffs alleged the defendants had sold the butter.
It seems settled, at all events in this state, that a factor under a del credere commission becomes liable to his principal when the purchase money is due; that as between him and his principal, he then in effect becomes the purchaser, or is substituted for the purchaser, and is bound to pay, not conditionally, but absolutely, in the first instance. (Sherwood v. Stone, 14 N. Y. Rep. 267, 270. Wolff v. Koppel, 5 Hill, 458. S. C. 2 Denio, 368. Milliken v. Byerly, 6 How. Pr. 214.) The court, therefore, was right in not complying with the first request to charge.
The second request to charge was substantially a request to charge, or hold, that if the sale to Taggard & Co. was an incomplete sale, so that as between the defendants and Taggard & Co. the defendants could not by the laws of California have enforced the sale and collected the money of Taggard & Co., in consequence of the want of some formality, or memorandum or entry in writing, or actual delivery, the plaintiffs could not recover in this action.
I think, under the undisputed facts and circumstances of this case, the court properly refused so to charge, or hold.
There was no question of fact for the jury. This was conceded by the counsel for the defendants. The question was not whether the defendants could have recovered against Taggard & Co., but whether the plaintiffs ought to recover against the defendants.
In their correspondence, the defendants had treated the *17sale as complete and binding; they stated and transmitted an account of the net proceeds of the same, after deducting commissions, &c. and promised to remit proceeds by the next mail. They charged Taggard & Co. and credited the plaintiffs, in their books. The butter was not delivered to Taggard & Co., the defendants retaining it for their security; but they charged Taggard & Co. for storage, according to custom. The sale was recognized and approved of by the plaintiffs.
It appears to me, that under these circumstances, as between the plaintiffs and the defendants, the sale ought to be considered as complete; that the defendants ought not to be permitted to say that it was not. I think, therefore, that the second request to charge was properly refused.
The third and last request to charge assumed a fact that did not exist. The plaintiffs did not retain the account of the second sale without objection; but if they had, no such legal inference followed as the request implied. The defendants had transmitted accounts of two different sales, the first of which was approved and recognized by the plaintiffs. I know of no principle which bound them to notice the second account.
As to rate of interest, I held at the circuit, that the plaintiffs were entitled to seven per cent only, the plaintiffs claiming the California rate of ten per cent. The case contains no exception to this ruling, but it seems that by stipulation the parties have agreed to have the question disposed of as if there had been an exception.
I must confess that I do not see why Fanning v. Consequa, (17 John. 511,) does not settle this question of interest in favor of the plaintiffs. (See also Scofield v. Day, 20 John. 102; Curtis v. Leavitt, 15 N. Y. Rep. 87; Hyde v. Goodnow, 3 id. 266.)
It seems that the contract implied by a factor, acting under a del credere commission, does not make him, a guarantor of the remittance. (Leverick v. Meigs, 1 Cowen, 646. See *18also 10 John. 286.) Does it not follow that the defendants’ contract with the plaintiffs was to be performed at San Francisco, by remitting thence the proceeds in the usual way ?
[New York General Term, June 4, 1866.As the attorneys have expressly stipulated that the verdict may be amended accordingly, I think that it may be so amended; and that the plaintiff's are entitled to judgment thereon, as thus amended, with costs.
Judgment accordingly.
Sutherland, Clerke and Geo. G. Barnard, Justices,]