be done probably with safety, is, to determine, as each case arises, under which class it falls. The act which caused the injury in the present case, was performed under the power and duty to clear the sewers of the city. Legislation, or in other words, the establishing of rules and regulations in respect to cleaning the sewers, or keeping them in a state of cleanliness, is one thing, and the act of cleaning them is another. The power and duty to perform the latter is clearly ministerial, and falls under the class of private powers. The principle of respondeat superior consequently ap plies." The measure of damages in cases where the maxim of respondeat superior applies will be probably regulated as in cases of a tort directly committed, in a degree at least, by the facility or want of it with which the plaintiff might have avoided or arrested by his own reasonable exertions. For the direct and consequential damages, the defendant undoubtedly is liable; but "if a party sustaining an injury by an act of another, can protect himself at a trifling expense, or with reasonable exertions, from the consequences, he fails in social duty, if he omits to do so regardless of the increased amount of damages for which he may intend to hold the other liable. . . . The law will not reward a man for the indulgence of his malice.(1) This whole matter, however, belongs to a different head than that of respondeat superior.] *654] *A FACTOR IS AUTHORIZED TO SELL ON CREDIT. OF THE CIRCUMSTANCES BY WHICH A FACTOR MAY BECOME LIABLE UPON SALES. ELIJAH GOODENOW v. JOHN E. TYLER. In the Supreme Court of Massachusetts. SEPTEMBER TERM, 1810. [REPORTED FROM 7 MASSACHUSETTS, 36-47.] If a consignee sell the goods of his principal, upon such credit as is usual at the place of sale, and take the purchaser's negotiable note, payable to himself or order, he does not thereby become personally liable to his principal, although the purchaser should fail before the note is due, and nothing should be paid by him. (1) Douglass v. Stephens, 18 Missouri, 337; and see Skipp v. Eastern Counties Railway, 9 Exchequer, 224. In this case, the defendant, a commission merchant at Boston, sold a pipe of gin, as factor of the plaintiff, and took the purchaser's note payable to himself, or order, at ninety days. The purchaser, before the time of payment, failed, and no dividend was paid to his creditors. No particular orders had been given by the plaintiff, as to selling on credit. A custom was proved at Boston, and at the defendant's store, for factors to sell on credit, at the principal's risk. In this action, of assumpsit by the principal against the factor, a verdict for the plaintiff was directed, because the factor had received in payment the purchaser's negotiable note; and a verdict having been given accordingly, the question of the factor's liability for having done so, came to be argued upon a motion for a new trial. PARKER, J. (1)The plaintiff would insist that a factor, under the circumstances of this case, had no authority to trust the purchaser; and that having so done, he became immediately chargeable to the principal for the price. But the law merchant clearly contradicts this principle, it being well settled that a factor may sell upon credit, without taking upon himself the debt; unless he is restricted from so doing by the orders of his principal. And this principle is reasonable, and for the benefit of those who send their goods to market: for otherwise they *would be frequently sold at a sacrifice, or remain unsold at the expense of the owner. [*655 But even if this were not settled law, it is very clear that the usage of the market where the goods are sold, would bind the owner, for he is presumed to be conusant of that usage; and if he is silent in his directions to the factor as to the terms of the sale, he is considered as intending to be governed by the usage. Then if the factor had authority in this case to sell on credit at the risk of his principal, there being no complaint of negligence, carelessness, or want of skill in making his bargain, either of which might have made him liable to the owner, notwithstanding his general authority; the question arises whether the mode in which the defendant gave the credit in this case, has fixed the debt upon him. A promissory negotiable note, payable to himself, was taken; and this is the point upon which the judge at the trial, (1) The principle stated in this case, as to the receipt of a negotiable note being payment, is peculiar to the States of Massachusetts and Maine, in this country; and even there, has been much modified by later decisions. See American note to Cumber v. Wane, 1 Smith's Leading Cases, 5 American ed., p. 440, &c. thought the liability of the defendant rested. why this should change the nature of the case. But I did not see The relation between the principal and factor remains the same, as if the factor had taken a note not negotiable; or had charged the article sold in his book, and had made the purchaser debtor to himself; which he certainly might have done, keeping an account at the same time between himself and the principal. That the note was negotiable, was favorable to the principal; because it could easily be assigned by the factor to him. It is considered by the law as taken in trust for the principal; and if the factor should refuse to sign it on demand, doubtless he would be liable in an action by the principal. It is said that a negotiable note, given for the amount of an account for goods sold, discharges the original contract. This is true, as settled in this commonwealth, between the vendor and vendee but it surely does not follow, that because the factor has changed an account on his book into the more simple and convenient evidence of debt, a note of hand, that for this cause only, he has burdened himself with a debt, for which he received no consideration. I am therefore of opinion that there ought to be a new trial. SEWALL, J. If I was satisfied that, upon established principles, a factor, who sells the goods of his principal upon credit, and receives a promissory note for the amount of the sales, payable to himself, and negotiable, became thereby immediately accountable, as if he had sold for money, I should think a new trial ought not to be granted. But I am not satisfied that this is the law. I think the rule in this respect must depend upon the particular usages of commission merchants, and *that the law upon *656] this subject, as to the authority of the factor, and the extent of his liability, is referable to known and established usages; where the parties rely altogether upon the general relation and implied duty of a merchant and factor, no directions or agreement having been expressed between them, or proved in the case. I think usage is competent evidence in a case of this nature, to show the implied intention and understanding of the parties. As evidence to the effect of proving a usage of selling upon credit, and of taking negotiable promissory notes payable to the commission merchant, was offered in this case, and rejected at the trial, I think there ought to be a new trial; leaving it for the present undetermined how far the usage will justify the conduct of the defendant in the case at bar. It is very certain that no usage can justify the defendant in any wilful negligence, in securing the property of his principal. And if his conduct has been such as to show that he had received and treated the note given for the gin as his own demand, he may be liable; notwithstanding usage to sell upon credit, and to take notes in payment should be fully proved. SEDGWICK, J. The question is, whether a promissory negotiable note taken by a commission merchant payable to himself, in payment for goods sold for his principal, at the time of the sale, the custom of the place authorizing a sale upon credit without express authority from the principal, is at the risk of the principal or of the factor. I have no doubt that the evidence of selling upon credit, where no particular instructions were given, was properly admitted. But evidence offered to prove that, in cases where credit was given by a factor, it was customary to take promissory negotiable notes payable to the factor, was rejected because it was deemed inadmissible. Perhaps it might be proper that a unanimous opposing opinion of all the other members of the court should induce such a modest diffidence of my own judgment, as would lead me silently to acquiesce. But of the opinion which I delivered at the trial, I had then very little doubt; and I confess that neither my own reflections, nor what I have heard since, have entirely altered the view which I then had on the subject. Under these circumstances it is my duty to declare (and I shall do it as concisely as possible) the reasons on which my opinion was founded. He did not leave it in We know that a promissory note, given and received for goods at the time of a sale of them, is payment, as much and as effectual, to all intents, and purposes, as cash. Now in this case, at the time of the sale, the defendant took a promissory note in his own name; and of consequence then received payment:-as much so as if he had received cash. He did not leave it in [*657 the power of the plaintiff to resort to Chapin, the vendee, but he was compelled to look only to the defendant. The note which was thus taken, and which gave evidence of a contract between the defendant and Chapin, to the exclusion of the plaintiff, was negotiable, or in other words, the very form, as well as nature of it, was currency: as much circulating medium as a bank note: of such nature, that a previously existing and parol contract, as the law is here understood, would have been merged by it as completely as it would have been by a bond, recognizance, or deed of any kind. Now can it be believed that if the defendant had taken a bond or other deed, in payment for the goods sold, the sufficiency of the debtor would have been at the risk of the plaintiff? No more, in my opinion, than if the defendant had taken a conveyance of real estate in payment. It seems to me, that in such a case the factor must be considered as assuming the risk of the responsibility of the vendee. It is in general undoubtedly true, where a factor sells the goods of his principal on credit, that on non-payment according to the contract, an action may be supported against the vendee in the name of the principal. The principal has in such case a double security, the fidelity of the factor, and the sufficiency of the debtor. But if he is deprived of the latter, the sufficiency of the debtor, by the act of the factor, as in this case by taking a promissory note in payment, it seems to me reasonable that he should have direct recourse to his factor. It is said that the factor is bound to permit, in such a case as this, the principal to make use of his name in commencing an action upon the note. But suppose he will not; the principal is then deprived of any remedy against the debtor; which instead of being an absolute right in the principle, and available at his pleasure, is made to depend on the will of the factor. The factor may also assign the note, or he may die, become insolvent, or a bankrupt, and thereby the remedy, which ought to exist against the debtor for the security of the principal, be wholly lost. The principle, contended for in the defence of this action, is not supported by any rule of commercial law laid down, or even suggested, by any approved authority. It is attempted only to be supported by the custom of commission merchants in Boston. For myself, I am not disposed to authorize any description of merchants to alter the known principles of law, in cases materially affecting the important interest of others; as this would do, by depriving principals of the means of looking immediately to their debtors, made such by their contracts with *factors. *658] It is not like the custom of notice, established by the banks in this State, and which has been approved by the court, of demanding the money due upon negotiated notes of the makers, when they fall due, according to the terms of them, without an |