Page:Federal Reporter, 1st Series, Volume 6.djvu/581

 8TEIGEB V. THIED NA.T. BANK. 669 �had not been a compliance with the representation, and it then devolved upon the plaintiffs to excuse their non-compli- ance. This they attempted to do by proof that the vessel was seaworthy and needed no repairs. The plaintiffs held the affirmative as to this. The instruction imposed the af- firmative upon the defendant. The manifest tendency of the instruction was to mislead the jury. Had my attention been specifically directed on the trial to the point now made, the instruction would have been limited to the issue arising upon the implied warranty of seaworthiness. As it was, a broad exception was taken to the instruction, which would probably be unavailpg upon a bill of exceptions for failure to speoify the precise point of objection. But on a motion for a'new trial, and when the misdirection may very possibly have had a material influence upon the resuit, a technical critioism of the exception is out of place. �The motion for a new trial is granted. ���Stbioeb and others ». Third National Bans. �[Circuit Court, E. B. Missouri. April 18, 1881.) �1. Factoe— Plbdge of Goods— Statutes of Misbouki. �Under the statutes of Missouri a factor is not authorized to pledge the consignoT's goods for an amount beyond the sum of the adrances and charges thereon. 3. Sahe — ConvBBsioN — Tendbb. �In such case a tender of the advancea and charges must flrat :be made by the consigner before suit eau be maintained for the con- version of the goods. — [Ed �Demurrer to Auswer. �George A. MadiLl and Henry E. Mills, for plaintiff. �OveraU, Juison e Tutt, for defendant. �Teeat, D. J. The plaintiffs aver that they shipped certain chattels (described) to their factors in St. Louis for sale; that said factors, without plaintiffs' consent, pledged the same to iha Refendant, with full knowl^clge on the part of the defend- ��� �