If, at the time when the defendants sold and received pay for the last consignment, the plaintiff’s fixm was indebted to them in the amount which they claim, then the referee was right. And the first question is, whether they were so indebted. The defend- • ants had received from the plaintiff’s firm the former consignment, ■ Avith instructions to sell at a certain price. They had advanced some money on the consignment, and had then sold at the price named, and had remitted the balance of the avails. Afteiwards the goods had been returned to them as-not equal to the sample. Noav, assuming that the failure of the goods to equal the sample was not their fault, and that they were entitled to be repaid the money which they had remitted to the plaintiff’s- firm, they had ’ a plain duty to do. :
’( They should have notified the plaintiff’s firm, and required the repayment of the moneys. Without doing this, they had no right *115to sell the goods at a price less than that named in their instructions. When, therefore, without notice to the plaintiff’s firm, and without demand from that firm of the moneys advanced, they sold tire goods at a price less than that at which they were authorized to sell, they did this wrongfully; and they had no right to call on the plaintiff’s firm to make good the loss. It is no answer to say that they sold the goods for all they were worth. They had no right to sell them at all, unless for the price named.
This disposes of the question, whether the plaintiff’s firm were indebted to the defendants in the amount which they claim. Another question remains. While the defendant had no legal claim against the plaintiff’s firm, still there had been a loss which the plaintiff’s firm might, if they had chosen, have made good. The question is, did the plaintiff’s firm, by any act, allow this claim, and settle with the defendants on the basis of such allowance? The defendants claim that the plaintiff’s firm did this by accepting the check sent for the balance of the last consignment. Now, by the acceptance of that check, the plaintiff’s firm did not allow any claim, of which they were ignorant- And we must inquire whether they knew of the claim and allowed it when they accepted the check. The letter of the defendants, inclosing the check, does not state the facts. It does not distinctly refer to the former consignment- But it is vaguely expressed, as if it were intended to make the plaintiff’s firm suppose that the alleged defective goods were a part of the last assignment. If the plaintiff’s firm are to be bound by the acceptance of this check, it should clearly appear that they understood the facts fully. On the contrary, they did not understand them; for they wrote at once to inquire the meaning of the letter, and to know why the whole avails of this consignment was not remitted to them.
We need not say whether, even with knowledge, they were bound to refuse the check, which was a part of what was owing to them. It is enough, that they camiot be prejudiced by its acceptance,' unless it be shown that they fully understood what had been done by the defendants, and knew that they had sold the former consignment at a less price than the instructions authorized.
*116The judgment should be reversed; and a new trial granted, and the reference discharged; costs to abide the event.
Present — Learned, P. <J., Boardman and Bockes, JJ.Judgment reversed; new trial ordered; reference discharged; costs to abide event.