Lathrop v. Harlow

Scott, Judge,

delivered the opinion of the court.

One of the points made by the defendants is, that the promise in writing to Lee, the agent, to accept his bill, was not assignable, and consequently the plaintiff, Lathrop, the endor-see, had no right of action. The case of McEvers v. Mason, (10 Johns. 213,) is cited in support of this point. But a reference to that case shows that it was decided on common law principles alone. Formerly, there were different opinions entertained in relation to the questions whether a bill of exchange could be accepted by parol, and whether a bill could be accepted before it was drawn. In this state of the law, our statute was passed, which enacts that “ an unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance in favor of every person to whom such written promise shall have been shown, and who, upon the faith thereof shall have received the bill for a valuable consideration.” The averments in the petition bring the case within the words of the statute, and dispose of this objection.

Another point made is, that the agent did not comply with the terms of his authority, and consequently his act is not binding on his principal. The agent bought forty-nine bales of moss, whereas he was required to purchase and draw for fifty bales. There is no doubt that, where there is an entire con-/ tract for a specific quantity of goods, or for several articles,] the vendee is not bound to receive part; and if part only bej delivered, he may return it. But if he retain the part delivered, after the time for the completion of the contract has elapsed, he is liable upon a quantum meruit for the value of such portion of the goods. By retaining the part delivered, there is implied a new contract to pay for that part. ( Chitty on Cont. *213446.) But this principle, it seems, is not applicable to purchases made by agents. Kent says : “IE the agent executes the commission of his principal in part only, as if he directed to purchase fifty shares of bank stock and he purchase thirty only, it then becomes a question whether the principal be bound to take the stock. The principal may, perhaps, be bound to the extent of the execution of the commission in these cases, though it has not been executed to the utmost extent, and this seems to have been the conclusion of' the civil law. But a distinction is to be made according to the nature of the subject. If a power be given to buy a house with an adjoining wharf and store, and the agent buys the house only, the principal would not be bound to take the house, for the inducement to the purchase has failed.” (2 Kent’s Com. 618.) Story, in his work on agency, adopts the views expressed by Kent. (Story on Agency, § 170.) To the same purport is Livermore, (1 vol. 99; Gordon v. Buchanan, 5 Yerger, 811.)

As to the point, whether the plaintiff took the bill on the faith of the letter of the defendant, that is a matter of fact for jury. It is so averred in the petition, and for the purposes of this case as it now stands here, it must be so regarded. The other judges concur. The judgment is reversed, and the cause remanded.