star-pagination">*Page 69 and, as advised by the defendant, charged such payment to the account of said consignment, to be paid to them with interest whenever the cargo of corn should thereafter be sold; that in pursuance of the directions of the defendant, the cargo of corn on its arrival at Albany on the 11th of August, 1857, was stored by the plaintiffs, and was afterwards, on the 12th of September, sold by them, the net proceeds thereof, after payment of freight, storage, weighing, insurance, the commissions of said plaintiffs, and the interest on the draft accruing after maturity, amounting to the sum of $2743.71; that said net proceeds were applied by the plaintiffs in account with the defendant towards the said sum of $3300, and then there remained due to the plaintiffs, upon said account, a balance of $556.29; that being so indebted, the defendant, in consideration thereof, afterwards, to wit, on the 18th of September, 1857, promised to pay to the plaintiffs the balance as aforesaid; and the plaintiffs demand judgment for such balance.

There is here a clear cause of action disclosed for the deficiency of the proceeds of the consignment to pay the draft; without regard to the concluding allegations of the complaint, of a certain balance due, and of an express promise to pay the same, and of a breach of such promise. The case is stated of the consignment of a cargo of corn and the making of a draft against the consignment, which the plaintiffs accepted and paid; the sale of the property consigned, and a deficiency in the fund arising therefrom, to reimburse the plaintiffs for the money advanced, as is alleged, for the accommodation and at the request of the defendant. Treating the advance, however, as made upon the faith of the consigned cargo, and in anticipation of its avails the plaintiffs as factors, after exhausting the fund arising from the consigned property, had the legal right to resort to the defendant, as principal, for the balance due. Here it is alleged that the proceeds of the consigned property arising from its sale were insufficient to *Page 70 pay the advances. It is said that the property was sold without waiting for the direction or authority of, and without notice to, the defendant. This, by no means, appears clear from the complaint; but if it had, it could not alter the rights of the parties. It is averred that the corn was consigned to the plaintiffs to be stored, and when directed by the defendant, to be sold on commission; and that such corn was, in pursuance of such directions, stored and sold, the deficiency ascertained, and an express promise made by the defendant to pay such deficiency. Had it, however, clearly appeared that the terms of the consignment were to store and sell when instructed by the defendant, and the plaintiffs sold, a month afterwards, without any special instructions, that fact alone would not deprive them of the right to call upon their principal to make good a deficiency. In Marfield v. Goodhue, (3 Comst. 62,) it was held that a factor who has made advances upon goods after their receipt by him may proceed to sell, notwithstanding instructions from his principal to the contrary; provided the latter, after reasonable notice, fails to repay his advances; and in the case of Brown v. McGraw, (14 Peters, 470,) the Supreme Court of the United States held that the party, under such instructions, might sell in defiance of his instructions, without even calling upon the principal for reimbursement. It is not, however, necessary in this case to affirm the principle of the latter decision to its fullest extent.

The complaint was clearly sufficient, and the demurrer frivolous. The judgment of the Supreme Court should be affirmed.

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