
    Thomas Henderson et al., Resp’ts, v. Benoit Wasserman, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    1. Sale—Delivery.
    Plaintiffs’ custom was to deliver the materials for defendant to their teamsters, with a slip containing the contents of the load, for which they obtained receipts. In an action for the value of goods so sent, it was proved that the items in the bill in question were loaded and sent to defendant’s house, which was in sight of the dock; that one of the plaintiffs saw a part of the articles carried there, and that defendant had said the bill was all right. Held, sufficient to carry the whole bill to the jury on the question of delivery.
    2. Same--Liability of owner of building.
    Defendant settled a prior lien for materials furnished to the contractor, and promised to pay for all furnished thereafter, and requested plaintiffs to furnish whatever was needed by the contractor. Seld, that defendant was the only person legally liable for such material,without regard to whom the goods were charged to, or against whom the lien therefor was filed.
    Appeal from judgment in favor of plaintiffs, entered on verdict, and from order denying motion for a new trial.
    
      Action to recover for building materials sold and delivered by plaintiffs to defendant.
    
      Theo. Burgmyer (F. E. Dana, of counsel), for app’lt; Archibald Mutch (Henry A. Monfort, of counsel), for resp’ts.
   Barnard, P. J.

The proof of the delivery of the articles was sufficient. The plaintiffs were dealers in building materials. The defendant was building a house, within sight of the plaintiffs’ dock, about a quarter of a mile off. The course of business was for the plaintiffs to deliver to teamsters the materials with a slip containing the contents of the load, with instructions to get a receipt from them at the building. The plaintiff Pearsall occasionally would help unload these shipments. The receipted slips were used at night as the basis for the entry on the books, and the books are •proven to be correct as called for by the slips. There is proof that an amount of brick was delivered at defendant’s house fully up to the items on the bill. The items of the bill are proven to have been loaded for the defendant’s house, and sent there by the teamsters. A part of the articles were seen to be carried there by the plaintiff, Pearsall. The defendant was informed of the amount of the bill, and after an interview with his contractor told the plaintiff “it was all right, that I should have my money.” The material was delivered at defendant’s house by the plaintiffs’ teamsters. This proof was sufficient to carry the whole bill to the jury upon the question of delivery. The amount of the bill was not’ disputed by the evidence, except that defendant denied his liability. This was a question of fact as to which the parties were at variance. The plaintiffs’ proof was to the effect that the defendant had contracted with one Mills. The plaintiffs sold Mills materials for the building and Mills failed to pay, and plaintiffs filed a lien on the lot. Then the defendant paid the lien and promised the plaintiff that he would pay for all materials to be furnished thereafter, and requested the plaintiffs to furnish whatever was needed by Mills for the building. The defendant denied this entirely.

The evidence to support the theory of plaintiff Pearsall and defendant is of no importance. The jury found for the plaintiff. If the plaintiff’s testimony be taken as the truth, the verdict must stand. There is proven a direct contract upon the part of the defendant to buy the goods on his own credit. It is of no consequence to whom the goods were charged or against whom the lien was filed. These facts are evidence as to the credibility of Pearsall, but assuming a contract between the plaintiffs and Wasserman, the owner, for the purchase of the material, Wasserman is the only one legally liable upon the contract.

Judgment affirmed, with costs.

Dykman and Pratt, JJ., concur.  