Milliken v. Byerly
New York Supreme Court
Motion for judgment on account of the frivolousness of the demurrer. The complaint shows that the defendant received goods from the plaintiffs to sell as a commission merchant for them, and that he was to guaranty the sales; that he rendered an account of the sales showing that part of them were due 20th April 1851, the rest on the 4th June or 23d June 1851. That after the account was rendered the plaintiffs demanded payment of the defendant, but that he neglected to pay,…
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Motion for judgment on account of the frivolousness of the demurrer. The complaint shows that the defendant received goods from the plaintiffs to sell as a commission merchant for them, and that he was to guaranty the sales; that he rendered an account of the sales showing that part of them were due 20th April 1851, the rest on the 4th June or 23d June 1851. That after the account was rendered the plaintiffs demanded payment of the defendant, but that he neglected to pay, and that the whole is now due from the defendant to the plaintiffs.
1Opinion of the Court
Mitchell, Justice.
The defendant demurs; and now alleges that the complaint should have shown a default in the purchaser.
*215This is not specifically alleged; but if the purchaser were not in default then he has paid the defendant, and then clearly the defendant is liable; if the purchaser is in default it is admitted that the defendant is liable. The commission merchant who is to sell and guaranty payment, and is to collect the debt himself, differs from one who merely guarantees a debt which the creditor is to collect; in this last case it may well be that a demand of the principal debtor is…
2Cited by1 opinion
- Cartwright v. GreeneNew York Supreme Court · 1866