2. Were the commissioner's reports and the decree aforesaid thereon correct in allowing the appellee its compensation of $2.00 per ton only on the proceeds of fertilizer sales collected by appellee and appellant and received by appellant and not on the gross sales by appellee?

The commissioner reports sales by appellee of 1,177 1-6 tons of fertilizer and allowed appellee his compensation above mentioned of $2.00 per ton on all proceeds of such sales which were collected by appellant and appellee and received by appellant and which will be received when appellee shall have paid to appellant the $1,313.23 balance due to the latter above mentioned. The decree complained of by appellee made the same allowance. Appellee claims, however, that it should have been allowed said $2.00 per ton on all of its sales of 1,177 1-6 tons of fertilizer, regardless of the fact that some of the farmers' notes therefor were never collected. Appellee makes this claim on the ground that appellant withdrew certain of the farmers' notes among which were those uncollected, from the hands of appellee and also otherwise prevented appellee from collecting such notes, by placing them in the hands of an attorney for appellant and notifying the farmers to pay the notes only to such attorney or to appellant direct; and appellee contends that this was a breach of contract by appellant and that but for such breach of contract by appellant appellee would have collected approximately (sic) all of such notes. above noted, one of the facts in the case is that under the provisions of the contract aforesaid the appellant was entitled to the custody and control of the farmers' notes aforesaid, which were uncollected on October 6, 1910, because the appellee, without the consent of the appellant, then ceased all attention to the business of said agency and accepted other employment in the State of Florida from that

As

date until the latter part of the next May, which was a breach of said contract by appellee. This fact is decisive, of the question under consideration and necessarily leads to the conclusion that the withdrawal of said notes aforesaid and the undertaking by appellant of the collection of such notes to the subsequent exclusion of the appellee in the matter after May, 1911, was not a breach of said contract on the part of appellant. Hence, there was no error in the commissioner's report, or in the decree complained of, on the point in question.

3. Were the commissioner's reports and the decree complained of thereon correct in failing to allow the appellee the $500 bonus aforesaid?

By the terms of the contract aforesaid, as shown by the evidence in this cause, the bonus in question was not agreed to be paid unless and until the appellee should sell, collect and settle with appellant for as much as 1,000 tons of fertilizer. Further, as above noted, there was a breach of said contract by the appellee on October 6, 1910, and at that time, while 1,177 1-6 tons of fertilizer had been sold by appellee, as much as 1,000 tons had not been "collected for." Under the provisions of the contract, appellant had the option to avail itself of the personal services of appellee in the collection of said notes. This was a material part of the consideration for the promise of appellant to pay said bonus. That it was material is admitted by appellee by its contention that its services, even after May, 1911, were valuable to appellant and would have been effective to the extent of collecting approximately all of the unpaid farmers' notes, if it had been permitted, after its said breach of contract, to undertake that task. And the promise by appellant, aforesaid, was indeed expressly conditioned, not only upon the sale, but the collection by appellee of the proceeds of sales of as much as 1,000 tons of fertilizer, which

was in fact the condition that appellee should give its personal attention to the collection of the proceeds of that amount of such sales. Hence, the breach by appellee of the contract, in the particular aforesaid, abrogated the promise aforesaid in respect to said bonus. Therefore, there was no error in the commissioner's report, or in the decree complained of, because of the failure to allow appellee said bonus.

For the foregoing reasons, we are of opinion to affirm the decree complained of, both as to the assignment of error by the appellant and the cross-assignments of error by the appellee.

Affirmed.

POCAHONTAS GUANO COMPANY, INC., v. SMITH,
RECEIVER, ET ALS.

(Richmond, January 24, 1918.)

1. PRINCIPAL AND AGENT-Del Credere Factor-Contracts-Actions— Statute of Frauds.-A del credere factor, like any other agent, is to sell according to the instructions of his principal, and to make such contracts as he is authorized to make for his principal; he is distinguished from other agents in that he guarantees that those persons to whom he sells shall perform the contracts which he makes with them. The relation of a del credere agent to his principal is that of debtor and creditor, and he is bound absolutely to see that his principal is paid, and he may be sued in indebitatus assumpsit if he does not pay the sale debt when due. Del credere guaranties are held not to be within the statute of frauds, as being promises to answer for the debt, default, or miscarriage of another, but are original agreements of suretyship and may be proved by parol. The distinction between a contract of sale and a consignment of goods to a factor is that in the case of a sale the title passes to the buyer, while in the case of a consignment to a factor the possession passes to the factor but the title remains in the consignor.

2. IDEM-Del Credere Agency-Case at Bar.-In the case at bar, involving a contract for the sale of fertilizers, held that a del credere agency was created.

Appeal from Circuit Court of Orange county.

Reversed.

Shackelford & Shackelford, for the appellant.
Browning & Browning, for the appellees.

This controversy grows out of the construction of the following contract:

"Mess. Swan Carpenter Co.,

"Orange, Va.

"Dear Sir:-We agree to consign to you the following named brands and quantities of fertilizers, and as much more as may be mutually satisfactory, to be sold by you as our agent, for our account, upon the terms and conditions named in this agreement; and we authorize you to sell them at such prices as to net us the amounts set opposite the brands, respectively, after taking out your commission and expenses.

"We will ship the fertilizer in car lot and prepay freight to Orange & Rapidan.

"Fertilizers are to be stored by you in a good dry house and to be insured by you, the expense of such storage and insurance to be a part of the price you will charge the pur

chasers of said fertilizers over and above the net amounts to be received by us as above, and not to come out of said net amounts.

"Settlements for the fertilizers sold by you is to be made July 1st, 1913.

"If sales are made on time they are to be payable Dec. 1st. 1913.

"On such goods as are paid for on July 1st, 1913, there is to be deducted from the net time prices Seven (7) per cent. discount. And you are to deliver to us or our order, when called for, all cash, notes, accounts, or other proceeds of sales of fertilizers sold, and you are besides to guarantee the payment of all sales made; also waive all homestead exemptions as to obligations under this contract.

"In the event notes should be taken from you, as a further evidence of your guaranteeing the sales made by you, said notes to be made payable at your Bank of Orange, and we are to be at liberty to use said notes and have the same discounted and when paid by you, you will be entitled to the notes, accounts or other proceeds of sale for which they were given as the guarantee.

"We reserve the right to suspend or cancel this agreement as to any part of the fertilizers undelivered, in case of any occurrence regarded by us as unfavorable to your credit, or any unavoidable accident or occurrence, or act of any authority or authorities preventing us from delivering the fertilizers.

"It is further agreed, that in any and all sales of the above fertilizers made by you, such sales are to be made with guarantee only of the analysis on the sack, and not of the results from their use, or otherwise.

"And it is distinctly understood and agreed that all of the above fertilizers to be consigned to you as herein provided as our agent, remains our property until sold by you,