The opinion of the court was delivered by
Redfield, J.This was an action of book account, and was recommitted to the auditor by this court at a former term, for a more particular statement of facts. The case now stands upon *615the last report, which the auditor says is intended to embrace all the facts in the case.
The case was heard at the present term, upon the question of law arising upon the report and upon a motion to recommit, for the report of further facts in relation to the plaintiffs having as-. sumed the debt of Dean & Co., at their own risk, as cash in hand. The decision of the court will be more briefly stated upon both points at the same time.
The case upon the report, was decided mainly upon the plaintiffs having assumed the debt of Dean & Co., by the letter of the 20th of September, 1845, their subsequent indulgence to Dean & Co., and especially, by the actual payment of a large portion of the balance. The important facts bearing upon this point in the case, are that this was confessedly a cash sale. . The defendant had no knowledge of any custom among commission merchants in Boston, to make delivery of goods in such cases, before the actual payment of'the money, although he had learned some such custom in New York. The sale was made on the 12th of September. Three days after, the plaintiffs called upon Dean & Co. for the money, thus showing that the plaintiffs considered it their right to require it at that time. But they were put off by sundry shallow subterfuges, until the 20th of September, when all evasions being removed, all parties regarded the money as due, the amount being definitely ascertained. At this time the plaintiffs render a full account of their dealings with defendant, and strike a final balance of “ Net Proceeds,” deducting commissions and all other charges, stating “ Amount to your credit $801,66,” “ which you can draw for at sight,” adding, “ when you write us again, please say if you wish us to remit to you, or you draw on us for the amount.” ■
It certainly requires some degree of sagacity, and refinement of criticism, to conjecture any ground of doubt of this being an actual, positive and unqualified assumption of the sale to “Henry Dean & Co.” “ $513,88,” as cash in hand. It so appears upon the account rendered. From anything which appears upon the account rendered, or the correspondence, the cash had actually been realized upon this, as much as upon any other portion of the account.
This sale to Dean & Co. consisted of sis different casks of cheese, with distinctive marks upon each to indicate the persons of *616whom the several casks were received by defendant, as is obvious from the marks themselves, which are carried into the plaintiffs’ account rendered to defendant, and obviously for the purpose of enabling him to give an account of them, to those of whom he received them, whether upon commission or otherwise. Thus showing very clearly that the plaintiffs understood that the effeet of this account, rendered by them, would -be to induce the defendant to make his final settlement with his customers or consignors, for the several casks, showing in the most unequivocal manner, that they at the time regarded it as a final assumption of the debt of Dean & Co. as cash in hand. Indeed any other view of the subject, seems to us, little short of absurdity. So much so, that we can scarcely conceive how the plaintiffs ever conceived sufficient effrontery to claim to have it treated in any other light. Such a claim, seriously put forth in any metropolis of trade, could only have exposed the claimant to ridicule or contempt. And the plaintiffs very likely, at home, would have pocketed the loss in silence, out of self-respect. For it seems they could not summon sufficient courage to make any demand upon the defendant until about thirty days after Dean & Co. had notoriously gone into bankruptcy.
And this view of the subject is confirmed by all the subsequent conduct of the plaintiffs. They paid the defendant’s drafts drawn upon them by their own direction, to the amount of nearly $800, on the 22d of Sept, and the 7th of October. They continued to call upon the firm of Dean & Co., and suffered themselves to be put off, from time to time, by such pitiful evasions, as sinking men are fain to resort to, until Dean &' Co., went into bankruptcy on the 7th or 8th of October, without giving the slightest intimation ■to defendant of the delay, which is certainly grossly negligent and altogether unaccountable, if they all the time considered the debt under the control of the defendant, and themselves merely agents for its collection. And of the same character is the additional fact that they gave no intimation of the failure of Dean & Co. to the defendant, till nearly a month after the event, on the 3d day of November, which was probably upon the receipt of an additional draft, when the sense of suffering, in paying the balance of the loss, drove them to the desperate resort of protesting the debt which they had, besure, voluntarily assumed, nearly two months before. And when the parties meet in Boston, a few days subse*617quent to this time, the plaintiffs make no claim, as we learn, to have the money, which they had paid upon the drafts, refunded; each seemed to stand mutely upon his own reserved rights then, whatever that might be, in the final event. Under this complication of facts, all tending to show the unqualified assumption of the debt of Dean & Co., and the actual payment of a considerable portion of it by plaintiffs, we cannot regard these payments as creating any debt on the part of the defendant. It was clearly regarded at the time, by both parties, as the payment of a debt by the plaintiffs. And in such case the money is not to be recovered back, except upon the clearest case of fraud on the part of defendant, or mistake of facts by plaintiffs; not the mistake of future contingencies, but present and important facts, forming the basis upon which the plaintiffs made the" payment. Nothing of. this is pretended.
Upon a question of this kind, which is a good deal matter of intention, and the facts being in writing, or conceded, become matter of law, very little, aid can be expected from reported cases, unless there is a very close correspondence in the facts. Each case, in its facts, will be peculiar; it is the leading principle which is to-govern all cases. But the case of Oakley v. Crenshaw, 4 Cowen 250, is very similar to the present,'and certainly not more clearly-indicating an intention to assume the risk of the collection. There-the factor said, the money is not all received, but “ I am desirous not to have the account stand open, therefore you may draw for the net balance.” And the court here regarded it as an absolute-assumption of the debt, -which could not be repudiated upon the-after failure of the debtor. If money paid over under such circumstances could be recovered back, nothing could ever be settled,, as is said in Consequa v. Fanning, 3 Johns. Ch. 587. In Robertson v. Livingston, 5 Cowen 473, the note of the factor is made-payable after the debt to the principal would fall due, thus-showing an intention to have one debt meet the other. It is said in Smith’s Mercantile Law, p. 106, “If indeed the factor, after the sale, remit his own note or acceptance to the principal, for the-amount of the proceeds, he will be liable on that, whether employed under a del credre commission or not, and whether the vendee be or be not solvent. For, by giving such an instrument, he lulls all the suspicions of his employer, and causes him to dismiss all care *618about the solvency of the purchaser.” Citing Lefever v. Lloyd, 5 Taunton 749. Simpson v. Swan, 3 Camp. 291. Goupy v. Harden, 7 Taunton 159. That is precisely the present case, except that here most of the money has been actually paid over. Now to the extent of the actual payment, there is not, in the present case, the remotest ground of belief that either party, at the time of payment, had the remotest apprehension that in any event it could ever be reckoned an advance, or in any manner formed a debt on the part of defendant. The case of Dwight v. Whitney, 15 Pick. 179, has no proper bearing upon the present case. It merely shows that carrying the sale into the account, to the credit of the ■consignor, does not necessarily fix the factor with the payment of the apparent balance of the book. The true rule upon this subject is, as it seems to me, laid down very briefly and very pertinently, in Shaw v. Picton, 4 B. & C. 715. 10 E. C. L. R. 443, in the language of Bayly, J, “ It is quite clear that if an agent (employed to receive money, and bound by his duty to his principal, from time to time, to communicate to him whether the inoney is received or not,) renders an account from time to time, which contains a statement that the money is received, he is bound by that account unless he can show that statement was made unintentionally, and by mistake. If he cannot show that, he is not at liberty afterwards to say that the money had not been received and never will be received, and to claim reimbursement in respect of those sums for which he had previously given credit. I think that when an agent has deliberately and intentionally communicated to a principal that the money due to him has been received, he makes the communication at his peril, and is not at liberty afterwards to recover the money back again.”
This view of the case settles the matter of the plaintiffs right to recover back money, which he has paid towards an acknowledged balance in his hands, on account of sales of property consigned to him. For the whole balance claimed, is of this character. How far the defendant is entitled to recover the remainder, we have not felt disposed to strain the matter very severely. The report being drawn up, with a view chiefly to present the plaintiffs claim to recover the balance claimed by him, and the contingency of defendants being entitled to recover a balance, not apparently being much upon the mind of the triers of the fact, there is nothing in *619the report to show that the defendant is or is not in any different circumstances from what he would have been, by reason of the plaintiffs having acknowledged this balance in their hands, the plaintiffs promise to pay the balance must still be regarded as a mere naked promise of payment, without consideration, which is revocable until performed. It is quite probable, facts exist from which it might be made to appear that he had dealt differently with his customers, in consequence of this balance being acknowledged in plaintiffs’ hands, and before he was informed such was not the fact, and if so, he would be entitled to recover the balance. But the litigation has been so long protracted, that we have not deemed it expedient to recommit the report, upon this point.
In regard to recommitting the report, to find how far the defendant has acknowledged his obligation to refund the money claimed by the plaintiffs, it would be useless, as we should regard an express promise to refund this money, as a mere nude fact. And, as this point has been urged with some degree of zeal, we may be allowed to say, that to our minds, it is altogether incomprehensible how any one can view the conduct of the plaintiffs, in the whole transaction, as falling short of the most culpable and gross negligence, in making or in not making these collections, long before the failure of Dean & Co., when from the mere fact of that firm, on the very last day of doing business, being permitted to overdraw their bank account $2500, it is obvious that any reasonable degree of pertinacity on the part of the plaintiffs towards Dean & Co., (half as much as they now exhibit towards defendant,) would have secured the payment of this balance by Dean & Co.
The motion to recommit is overruled and judgment on the report for defendant to recover his costs.