It can hardly be said that the complaint shows that the sale of the cargo of corn by the plaintiffs was made in pursuance of the directions of the defendant; yet it does show that there was a balance of $556.29, besides interest, due the plaintiffs after applying the net proceeds *Page 71 of the corn in payment of the advances they made for the accommodation of the defendant, in taking up his draft; and that the defendant, being indebted to the plaintiffs for such balance, and in consideration thereof afterwards, on a day named, promised the plaintiffs to pay such balance to them.
It is clear that the plaintiffs accepted and paid the defendant's draft upon the faith of the corn the latter consigned to them, and that the proceeds of the corn were insufficient to reimburse them, into $556.29 for the money they advanced in paying the draft.
There can be no doubt that these facts made the defendant liable to pay the plaintiffs such deficiency, if the sale of the corn was either authorized or ratified by him. (Gihon v.Stanton, 5 Seld. 476.) And the decision in Brown v. McGraw, (14 Peters' Rep. 479,) goes farther than this. But it is unnecessary now to determine whether that decision should be followed by this court.
When the defendant promised to pay to the plaintiffs the balance of their advances, over and above the net proceeds of the corn, he ratified the sale of the corn by the plaintiffs. The inference from such promise is that the defendant was satisfied with the sale; and he can not be allowed now to question the legality of the sale, unless his promise was fraudulently obtained, or was made in ignorance of facts that would justify him in repudiating it; neither of which can be inferred from the complaint.
The same strictness in pleading is not required under the code that was exacted by the courts under our former system of practice. (See 3 Seld. 476; 19 N.Y. Rep. 231.) The code expressly enjoins, that "In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties." (§ 159.)
These views lead to the conclusion that the complaint states facts sufficient to constitute a cause of action; and *Page 72 that the judgment of the Supreme Court, overruling the demurrer to the same as frivolous, should be affirmed with costs.
EMOTT, J. dissented.
ROSEKRANS, J. was absent.
All the other judges concurring with WRIGHT and BALCOM, Justices,
Judgment affirmed.