Eaton v. Welton & Co. , 32 N.H. 352 ( 1855 )

Fowler, J.

We are ealled upon to revise the decision of the court below in overruling the motion for a nonsuit. That motion rested upon two grounds ; the want of competency in the evidence introduced by the plaintiff to show the receipt of the lozenges by the defendants at San Francisco, and its incompetency to show that the plaintiff had ever made any demand upon the defendants for an account of the sales and payment of the proceeds.

Upon the first point, the only inquiry is whether the evidence submitted had any tendency to show that the defendants had received the lozenges, and was, therefore, proper to go to the jury on that question. The testimony was substantially that of a witness, who stated that in November, 1850, he purchased of the defendants at San Francisco lozenges in boxes similar to those which the plaintiff had shipped to them the March previous; that these boxes were marked “ Concord, N. H.,” which was the place of manufacture of the lozenges shipped to the defendants by the plaintiff, and that the defendants at the time had in their possession other boxes of the same kind, and labelled in the same way; and that of another witness, who testified that one of the defendants, after the shipment of the lozenges to them at San Francisco by the plaintiff, called several times at the office in Boston, whence the lozenges had been shipped to them, and inquired where the plaintiff could be found, saying that he had had some lozenges shipped out there for him, and he wanted to see him and settle with him for or about them.

Now, although this evidence might not be deemed conclusive proof of the receipt of the lozenges by the defendants at San Francisco, yet, in the entire absence of any attempt by the defendants to show that they had ever received, from any other source, lozenges put up and labelled as were those shipped to them 'by the plaintiff, and subsequently sold by them in San Francisco, or to explain their own statements and admissions, at the time of their inquiries after the residence of the plaintiff at the shipping office in Boston, it certainly had a strong tendency, and was clearly competent to be submitted to the jury, to show that fact, and the jury might well have found it upon this evidence alone.

As to the competency of the testimony to show a demand by the plaintiff upon the defendants for an account of sales and payment of the proceeds, we think the evidence in relation to the calls at the shipping office in Boston, and the statements of the defendants that they wished to see the plaintiff and settle with him for or about the lozenges which he had had shipped out there for him, might properly have been left to the jury as competent for that purpose, and from it they might legitimately enough have found that the defendants had been called upon to account for and pay over the proceeds of those very lozenges. It certainly seems to us to have a strong tendency, unexplained as it was, to show this.

But a careful examination of authorities has satisfied us, that, under the circumstances of this case, it was not necessary for the plaintiff to make or prove any demand upon the defendants, and therefore the competency of this evidence becomes wholly immaterial.

The doctrine seems well established, by weight of authority, that it is the duty of persons who receive goods to sell, to account for the proceeds thereof in a reasonable time, without demand, in cases where a demand would be impracticable or extremely inconvenient; so that factors abroad, who, as in this case, may have received goods to sell, without special instructions as to the mode of remittance, are held, according to the course of business, to render an account of their sales, or pay over the proceeds thereof in a reasonable time ; and if they neglect to do this, such negligence is a breach of contract, and subjects them to an action. So, likewise, after the lapse of a reasonable time from the receipt of goods and a neglect to account for them, the fair presumption is that the goods have been sold and the money received for them, and an action for money had and received may be maintained. See 17 Mass. 145 ; 7 Pick. 214 ; 9 ditto 368, 387, 393 ; 1 Starkie 224, and other authorities cited by the plaintiff’s counsel.

In this case the goods were shipped to the defendants in March, 1850; received and sold by them about November, of that year, and this suit was not commonced until April, 1853 — nearly or quite two and a half years after the receipt and sale of the goods. Here, in our judgment, a reasonable time had elapsed, without any rendition of an account or any remittance of proceeds, and, according to what may justly be regarded as a well established rule, no demand was necessary. There must be

' Judgment upon the verdict.