By the original contract between’ the- parties, the defendants agreed to' procure fifty cotton warps to be manufactured, and to sell and deliver them to the plaintiff, at a specified price to be paid on delivery. The defendants delivered twenty-eight of the warps to the plaintiff in pursuance of the contract, and they procured the remaining twenty-two warps to be manufactured, but instead of delivering them to the plaintiff, the defendants sold them to' another person, and used the proceeds. The sum received by them exceeded the price which the plaintiff • agreed to pay, and that excess the plaintiff seeks to recover in this action. In his complaint he alleged the transaction to bé a sale by the defendants of warps belonging to him and delivered to the defendants as his agents to sell on his account. In support of that allegation he testified on the trial, that after the twenty-eight warps had been delivered, the defendants, who were commission merchants, agreed with the plaintiff to sell the remaining twenty-two warps for him on commission. That statement was contradicted by the testimony of the defendants. _ The question thus raised was submitted to the jury, and if this were all of the case it would. be free from error.
But the learned judge, on being requested by the’ defendants’ counsel to instruct the jury that the plaintiff could not recover, unless they were satisfied that subsequently to the original contract, an agreement' was made by which the defendants undertook to sell the twenty-two" warps for "the plaintiff’s account, declined so to charge. .Further, he charged the jury, in substance, that even though there had been no contract to sell on the plaintiff’s account, the plaintiff might ratify the sale, and regarding the defendants as having sold *409on his account, and as having received the proceeds, might look to them as his factors.
[New York General Term, April 3, 1867.In so charging, and declining to charge, I am of opinion the learned judge fell into an error. The original contract "was strictly executory. Under it, the title to the warps did not pass to the plaintiff, till delivery. Without title to the twenty-two warps he could not adopt the sale as his own. His only remedy was for a breach of the executory agreement to deliver them to himself. He could not recover in the present action, or at least, under the complaint in its present form, without establishing an express agreement by the defendants to sell the warps on his account.
I think the judgment should be reversed and a new trial ordered.
Leonard, Ingraham and J. C. Smith, Justices.]