Read v. Bertrand , 4 Wash. C. C. 556 ( 1825 )

WASHINGTON, Circuit Justice,

upon the first point, delivered the same charge in substance as he did on the trial of the cause above referred to.

2. The second question is, whether the evidence in the cause supports the plea of plene eomputavit, and this will be easily comprehended by the jury when we attend to the agreement between the parties, and the issue which is formed by the • pleadings. The agreement was, that the defendant should receive from the plaintiff a parcel of jewel-lery and fine goods to sell on his account for a certain commission, and should return to the plaintiff all such of the goods as he should not be able to dispose of. If the goods, or any part of them, should be sold at prices beyond those at which they were invoiced, the defendant was to receive, as an additional compensation, one half of the excess. The declaration states the agreement, and the defendant’s promise to account, and complains that he has not accounted, as he was bound to do. The defendant pleads in bar, that he has fully accounted, and upon this fact the parties, are at issue. It is insisted by the defendant’s counsel that the accounts current rendered by him to the plaintiff maintain the plea; as they included, on the debit side, the invoice price of all the goods, and on the credit side, all the sales, leaving the balance to his debit. It is very true that those papers contained an account, but did they contain a full account, according to the agreement of the parties? What was that agreement? It was to sell the whole of the goods, or, if that could not be done, then, to return to the plaintiff the unsold goods. But the accounts rendered to the plaintiff contained no statements either of the sales of those goods, or of a return of those not sold. They represent, it is true, the sales of a part of them, but show upon their face that the residue, to the amount of about $26,-000, still remained unsold. How then can this be styled “fully accounting,” according to the terms of the agreement? The object of the plaintiff on entering into it was, to have all the goods sold, with a view to the profit to be obtained upon them; and unless they were sold, his design was totally frustrated. Until the whole were sold, or, in case this could not be effected, the unsold part was returned to the plaintiff, it was not in the power of the defendant to account fully, and nothing short of that could satisfy the plea. If, in conformity with the truth, the defendant had ventured to plead that he had rendered an account merely, it would' have been bad upon demurrer; as it could offer no bar to the action, without alleging that the defendant had fully accounted. The reason of all this is obvious. If the defendant has rendered a full account, the object of this suit was answered, and the plaintiff could not maintain it in this form of action. If he has not fully accounted, then the action of account render is proper, and the judgment quod computet follows, which sends the parties before auditors, whose province it is to examine and settle the accounts between the parties.

It was strongly insisted upon by the defendant’s counsel, that after rendering the accounts current before spoken of, the plaintiff might have maintained an action of as-sumpsit upon an insimul computassent, for the balance struck by the plaintiff. The unanswerable objection to such an action would have been, that this balance consists of the unsold goods, and not of money in the hands of the defendant or of others, and that to make the defendant liable for their invoice price, or for any other price, would be to treat him as a purchaser of those goods against his will, and against the will of the plaintiff also, who might not choose to waive the profits which he might expect upon a sale of them. To this it could not be answered. that by presenting such an account, the defendant bound himself to pay the balance; because the manifest intention of rendering such an account is merely to present to the principal a statement of the goods sold and unsold, and not a final account; which could not be rendered until all the goods were sold, or returned to the plaintiff. This point was •decided in the former action, when the court informed the jury that the plaintiff could not recover upon the count for an insimul eom-putassent, since there was no evidence that the parties had accounted together. There is then nothing in this objection; and if the jury should be of opinion upon the first point, that the defendant was a citizen of this state when this action was brought, they ought to find a verdict for the plaintiff.

Verdict for plaintiff, and judgment quod com-putet.