#### WILLIS LAMB vs. HENRY P. GOODWIN & AL.

Where one conveyed to a trustee, for the purpose of paying his debt?, all his interest in the goods in a certain store, his books, notes, accounts, &c., and the trustee sold the whole at public sale for a price upon which he fixed ; Held, that the person, who made the conveyance, being present at the sale and not objecting, was'bound by it, at least at law, however irregular the sale may have been.

The cases of Bird v. Benton, 2 Dev. 179, Governor v. Freeman, West v. Tilghman, 9 Ire. 165, cited and approved. ■

Appeal from the Superior Court of Law of Perquimans County, at the Fail Term 1849, his tlonor Judge Bailey presiding. ■

On the 22nd of April, 1846, the plaintiff, for the purpose of securing and paying certain debts, executed fo one Black a deed, conveying several tracts of land, stock, farming utensils, &o., also all his stock in trade at New-by’s bridge, and Pine Grove, consisting of dry goods, groceries, &c., “likewise all the books, accounts, notes, bonds, judgments, and other evidences of debts, due the said Willis Lamb ; in trust, to sell the lands and other property, herein conveyed, at public auction for ready money, and convey the same by proper and sufficient assurances to the purchasers, and apply the money to the payment of said debts” — the sale to be made at Newby’s bridge, after due advertisement.

In January 1847, at Newby’s bridge, Black offered, at public sale, all his right, title, interest, and claim, and every evidence of debt in and upon the Pine Grove establishment, which he had by virtue of the deed of trust, ex*321cept one account of $30, which one of the defendants afterwards paid him. The plaintiff was standing by, when the offer to sell was made, and said nothing. Black observed, he must have at least $375. One Wilroy had that sum for the defendants, and it was knocked down to the defendants at that bid. The goods were at Pine Grove two miles distant. On the Sth of February, Black executed to the defendants-a deed, conveying all his right and interest in the stock of goods at Pine Grove, and releasing to the defendants all the debts and demands against them, assigned1 to him in and by virtue of'the d'eed of trust, for the consideration of $375.

On the 1st of April, 1848, the defendants signed the following instrument, not under seal:

“Received, April 1st, 1846, of Willis Lamb, in goods and merchandise, to the amount of two thousand and seventv-two dollars, of which we are to sell and pay, as •fast as sold and collected, with the addition of twelve cents on the dollar on all goods sold, and when all parties agree to close said business the said Willis Lamb is to take back all goods, not disposed of, at the former cost.”

The plaintiff also.proved, that he advanced other goods upon the same terms subsequent to the date of the written contract; and that, on the 1st of November 1845-, be advanced the greater part of the goods- estimated in the written contract of April 1846 ; that he made a demand upon the defendants that they refused, and this action was commenced. The action is assumpsit — pleas, general issue, payment, accord, and satisfaction.

The Court charged, that the plaintiff was entitled to recover, unless he assented to the sale made by Black to the defendants ; but, if he did assent, he was not entitled to recover, and his standing by and not forbidding the sale, was evidence of his assent, but not conclusive, and that fact was submitted to the jury, To this part of the charge the plaintiff excepted.

*322No counsel for the plaintiff.

Heath and W. N. H. Smith, for the defendants.

Pearson, J.

The plaintiff has no right to complain of the instructions. It is true, the trustee took a short way of closing the “establishment” at Pine Grove. It is not usual to sell goods that are not present — more unusual to sell them in one lot — and still more so to include in the same oiler any balance due . for goods sold under a contract ot agency, as to which no account had been rendered, and the amount whereof was indefinite and unascertained. But stripped of the circumstance of its being done at public auction, which was a mere farce, for no one but the defendants could be expected to bid, the transaction is simply this : the trustee asks the bailees and agents, who have the goods in hand and are liable under the contract, what sum in gross they will give for the goods and claim ; they offer $375, which is accepted. This takes place in the presence of the plaintiff, who makes no objection.

The cases of Bird v. Benton, Governor v. Freeman, West v. Tilghman, 9 Ire. 165, were cited. The principle involved in that class of cases has no application to this. Thére, the sale was made by a third person and the owner stood b}' — here, as to the goods, the sale was made by the legal owner, and as to the claim for goods sold, by the trustee and agent of the plaintiff, and the price was to be applied to the payment of his debts.

A distinction ought to have been taken on the trial be. tween the goods, and the claim for the goods sold. By the deed of trust, the goods vested in Black, as legal owner — such as were sold afterwards were sold for him, and such as remained on hand belonged to him. So, in respect to the goods, the plaintiff was not entitled to recover, independent of his assent, and his remedy, if any, was in equity, for a breach of trust and fraud between the trustee and the .defendants^

*323The amount, due for goods sold before the deed of trust, (we presume there was something due, although the case does not so state, but leaves it as a matter of inference,) was a chose in action, and the legal title did not pass. The effect of the deed was to make Black the agent of the plaintiff, with power to receive or sue for the sum due, in the name of the plaintiff, to be applied, when collected, to the purposes of the trust. Black had authority to make a settlement, agree upon the balance, and give an acquittance. So that the defendants were under the necessity of relying upon the alleged assent of the plaintiff, only to show, that he, having the legal title, and with full notice by his presence and silence, gave his sanction to the unusual manner of closing the business ; and that a sum in gross was received in satisfaction of the choses in action for and on his account, and by his authority. This, if true, sustained the plea of “accord and satisfaction.”

It is not stated how much was due, but, if it, together with the value of the goods, exceeded $375, the receipt of that sum by the plaintiff, through his agent the trustee, was a satisfaction.

The case does not fall within the principle, that a less sum received in payment, cannot be a discharge of a greater sum, as held in Cumber v. Wayne, reported in Strange, and cited in 1st Smith’s leading cases 147 ; for the principle is confined to cases, where the sum due is certain, and does not apply to a case like the present — an unliquidated demand of pecuniary damages, depending upon the extent of the sales made by the defendant.-'. Longridge v. Derrick, 5 B. & A. 117, id. note 149.

The plaintiff did not show a right to recover at law. Whether the circumstances, under which the sale was made, and the fact that no account was rendered by the defendants, whose duty it was to keep an account, will entitle him to relief in equity, and the effect of the assen t *324in that Court, are questions, about which we are not now called on to give an opinion.

Per Curiam.

Judgment affirmed..