Lord v. Willard , 51 Me. 196 ( 1862 )

The opinion of the Court was drawn up by

Davis, J.

The defendant, Joseph E. Willard, gave the plaintiff a written agreement, dated Jan. 15, 1853, of which the following is a copy : —

" Let my brother, Evat Willard, have what corn and flour he may want, on commission, and I will bo responsible for the amount sold by him, for you, on commission.”

Upon this agreement the plaintiff delivered to Evat Willard corn and flour to1 a large amount, the date of the last delivery being May 12, 1853. He testified, at the trial, that he " sold the goods, on the credit of the defendant.” The action is assumpsit for goods sold and delivered. Some payments were made by Evat Willard, the last of which was Nov. 6, 1855. The writ is dated Oct. 4, 1859. One of the defences is the statute of limitations.

The contract of the defendant was not for the purchase of goods. He neither bought any corn and flour himself, nor did he authorize the plaintiff to sell to his brother, on his account. But he proposed to the plaintiff, if he would make his brother an agent, to sell corn and flour for him, he, the defendant, would be responsible for the amount so sold. The defendant limited the terms and conditions of his responsibility; and the plaintiff could claim nothing without conforming to them.

If Evat Willard had been a factor of the plaintiff, and had sold goods for him, a suit could not have been maintained for the proceeds without a previous demand. And the statute of limitations would have begun to run from the date of such demand. But, in this case, no such demand is alleged, or proved. It is obvious that there are no data for applying this defence. The right of action never accrued.

Neither count charges the defendant for any liability incurred by Evat Willard as an agent of the plaintiff; nor would the evidence support such an action. The transaction was not within the terms of the defendant’s agreement; and the nonsuit was properly ordered.

Exceptions overruled.

Appleton, Cutting, May and G-oodenow, <TJ., concurred.