dissenting. The plaintiffs’ demand is based on the following circumstances. In January, 1850, Thomas Hord purchased of William Sharp a sugar estate on certain terms and conditions, stipulating, among other things, to deliver, in payment of the price, to the order of his vendor, two-thirds of each crop of sugar and molasses to be made by him on said estate for six consecutive years, the balance of the price, after the expiration of that time, to bo paid in full. On the 25th of January, 1851, Hord shipped one hundred and sixteen hogsheads of sugar, eighty-four tierces of molasses, and four tierces of cistern bottom to the plaintiffs, merchants of New York, to be sold for his account, instructing them to place the net proceeds thereof to the credit of Sharp, except one-third of the molasses and cistern bottom, which ho reserved for himself. The day previous to the shipment, Hord drew the following order in favor of Sharp on Lyman, one of the plaintiffs: u Mr. H. H. Lyman will please pay Wm. Shaop, or order, the proceeds of one hundred and sixteen hogsheads of sugar and two thirds of the proceeds of eighty-four tierces molasses and four tierces of cistern bottom, and oblige, &c.” On the 2oth of January, 1851, the day after, the following endorsement was made on it: “ Pay the proceeds of the within sugar and molasses to H. G. Dwight, or order,” and signed by Shaop. On this assignment the defendant procured from the plaintiffs an advance of $6500. The proceeds of the consignment having fallen short to meet the amount of the advance, the balance resulting in favor of the plaintiffs constitutes the subject matter in dispute.
The receipt of the defendant is in these words: “Received, Franklin, Jan’y 25th, 1851, from Peck & Lyman, H. 3. Lyman’s draft on the said Peck & Lyman, at one day’s sight, for six thousand, two hundred and fifty dollars; also H. 3. Lyman’s chock on Oanal & Bank’g Co., New Orleans, for two hundred and fifty dollars, in all six thousand and five hundred dollars, as an advance on account of a shipment made to them by Thomas Hord, and in accordance with an agreement signed by me and dated this day; the said Hord haring giren an order for aportion of the proceeds of the said shipment to Wm. Sharp and the said order being endorsed to me, the said sum has been received on said order and is to be credited on the same.” The defendant gave a guarantee to the plaintiffs that the sugar, molasses and cistern bottom should be shipped as stipulated by Hord to them ; its obligations extend no farther.
From this state of facts it is clear that the defendant is liable to the plaintiffs for the balance resulting after allowing the proceeds of the consignment as a credit. But it is urged by the defendant that the plaintiffs must fail in this action, as they have failed to establish the correctness of the accounts of sales. From the nature of the transaction between all those parties, it is manifest that the defendant cannot question the correctness of those accounts. Hord alone can be affected by it: the net proceeds, whatever the amount may be, are to be applied in part payment of the price of his purchase. Besides, the deposi. •¿ion of Hord shows that he considered the accounts of sales correct, copies of W'hicli are filed in connection with his testimony.
*451In relation to the bill of exceptions taken to the opinion of the Judge excluding the deposition of Sharp on the score of interest, it is immaterial to consider it; it cannot vary or contradict the written contract between the parties in the absence of any allegations of error, surprise, or fraud.
I am, therefore, of opinion the plaintiffs ought to have judgment against the defendant.