The facts, as they are stated, do not furnish evidence that the plaintiffs agreed to give the defendant credit until the property consigned to them was sold. The plaintiffs stand like other commission merchants. They have no right, in the absence of directions, immediately to sell the goods consigned to them, if the interest of the consignor will be sacrificed by such sale. The receiving of the goods, under an agreement like the present, carries with it, also, the obligation to give a reasonable credit; and to force the goods into market as soon as received, without regard to the interest of the owner, and merely to turn them into money as early as practicable, would be such a breach oí duty as to expose them to a claim for damages, if the goods were sacrificed by the sale. On the other hand, they are required to wait only a reasonable time, and then, if the goods are not sold, they may call for payment or further security, and may sue for the amount due to them. This principle is well established as a part of the law merchant, and (without citing other authorities) is expressly recognized in the case of Beckwith v. Sibley, 11 Pick. 482.
On an examination of the accounts, we are satisfied that the sum sued for was due at the time the action was brought. It is true that by applying the payments, as received, to the discharge of the items of account first in order of date, the sum due would not exceed the amount stated by the counsel *184for the defendant, to wit, $833-63. But we think, from the statement in the report, and also from the correspondence of the parties, that the sum of $2953-50, received by the plaintiffs on the 3d of September 1844, was to be specially applied to the payment of the acceptance of May 6th, for $3000, in five months, and falling due October 9th; and though the money was received more than thirty days in advance, yet it was raised upon the credit of the plaintiffs, for the very purpose of meeting the prior acceptance, and they had a right so to apply it. The plaintiffs, then, had a good cause of action at the date of their writ; and as nothing had been realized from the sale of the goods, they were not guilty of a breach of duty towards the defendant, in commencing their action in order to obtain further security.
But it is contended that the plaintiffs have been paid since the' commencement of the suit, on the ground that they are bound to apply the proceeds of the. sales, received by them, to the extinguishment of the first advances, in the order of time in which they were made. If this principle of appropriation were applicable to the case, the conclusion of the defendant would be correct; and though he might be indebted to the plaintiffs, it would not be on the present cause of action. Bu1" we think that the rule applies to running accounts, where such payment must be presumed to have been made without other reference than to the- simple discharge of the account, as far as the items of payment will go, and that the rule does not apply where the party having the right to make an appropriation of a payment does actually make it; or, in the absence of such appropriation, when the law, looking at the relations of the parties and the.nature of the account or transactions between them, finds another application required in order to do justice between them. Peters v. Anderson, 5 Taunt. 596. Wright v. Laing, 3 Barn. &. Cres. 165, and other cases.
In the present case, the plaintiffs had paid for the defendant $16,000, after suit brought, before they had received any thing from the proceeds of the goods, except about $250 ; and we think they might well apply the proceeds of the *185goods, as they were received, towards the discharge of the moneys paid by them prior to such receipts. It was an appropriation which certainly they had a right to make, in the absence of any direction from the defendant, if he had any right to control it; and the bringing of the suit by the plaintiffs was evidence of such intended appropriation, coupled with the manner of separating and stating the accounts which they rendered him, and to which he made no objection. The property, by their attachment, had added to their security; and it is one of the rights of a creditor, having several demands, to apply the payments to the debt not secured by property or by sureties, where other rales do not interfere or prohibit it.
But there is one sum of $250, received by the plaintiffs before any such payments were made, which must be applied in discharge of the sum due when the suit was brought; as they then had no other claim against the defendant upon which a suit could be maintained, and as he might afterwards himself furnish means to pay the plaintiffs. Hunt v. Nevers, 15 Pick. 500.
The selling under a del credere commission, while it secures the amount of the sales to the principal, does not in law require the factor to anticipate the credit ; and the principal is only entitled to have the amount passed to his credit when the sale is matured. In this case, only one sale was matured prior to the payment of the $16,000. This amount must therefore be credited to the defendant. For the balance, casting the proper interest on the account, the plaintiffs are entitled to judgment.*
See Smart v. Sandars, 3 Man. Grang. & Scott, 380.