Carter v. Cunningham

Shaw, C. J.

We think the instruction was right. That instruction was, that if there was no special agreement as to the mode and place in which the advances were to be repaid, the in-h rence would be, on the evidence, if believed, that they were to be repaid here and not at Mobile. An advance on goods consigned for sale implies that the goods are to be sold for account of the consignor, and the net proceeds applied to repay the advance. Of course the consignor is entitled to the profits of the sale, and must be responsible for all charges and expenses incident thereto, from the time of the consignment to the time of the reimbursement. Had the house making the advances been established at Mobile, it would have presented a very different question; but the house was established here ; and by agreement, for the benefit of the consignor, the goods were to be sent to Mobile, to enable him to have the benefit of the market there. They were there to be sold by a partner of the defendants, sent there for a limited time and a special purpose, and that known to the parties. That partner had no authority to invest the proceeds of the plaintiff’s goods in merchandize, to be shipped at his risk and ex pense. Then the inference from the facts is, that the advance was to be repaid here, and, for that purpose, that the proceeds of the goods were to be received in Mobile, and remitted to Bos ton ; and the expense of such remittance must be borne by the plaintiff. If it was prudent, and according to the usual course of mercantile dealing, to remit in specie, and if specie was above par, then the cost of obtaining specie, with freight and insurance, would be chargeable to the plaintiff. So if it was prudent and usual to remit in exchange, then, for the same reason, the premium on exchange would be chargeable. The case is therefore to be referred to an auditor, conformably to the agreement of the parties.