
    *Fitch and another v. Dederick.
    
    
      Evidence of guarantee,
    
    The mere knowledge on the part of the defendant, that a third person had purchased goods, and agreed to give the defendant’s notes in payment, does not render him liable to the vendor.
    Appeal from the general term of the Supreme Court, in the third district, where a judgment entered upon a verdict in favor of the plaintiff had been reversed, and a new trial awarded; the plaintiffs stipulating for judgment absolute, in case of affirmance.
    This was an action by Simeon Fitch and another against Zachariah Dederick to recover the price of certain stone, which the complaint averred the plaintiffs had sold to the defendant. The answer denied the purchase.
    
      It appeared, on the trial, that one Patrick' O’Donnell had two several contracts for the grading and paving of certain streets in Brooklyn. That in the execution of such contracts, it became necessary for him to procure a quantity of stone. That the defendant had had dealings with him, loaning him his notes and money, for which he had taken various securities, among which were orders for money becoming due for work done upon the said contracts. That O’Donnell applied to the defendant for aid in .procuring the stone for a portion of the work. Evidence was given tending to show that the defendant authorized O’Donnell to purchase $2500 worth of stone on his credit, which was controverted by evidence introduced by defendant. It appeared, that O’Donnell agreed with the plaintiff to give him the defendant’s notes in payment for the stone delivered to him. The plaintiff proved, that the defendant had loaned O’Donnell some $12,000 in money, for which the latter was indebted to the former, at the time the stone was delivered. The defendant took an exception to the admission of the evidence of this loan and indebtedness.
    The learned judge charged the jury, that if the defendant knew that his notes were promised to Fitch, and that the sale was on the faith of receiving these notes, that would make the sale, on that credit, and he would be ^responsible; to which the defend-an|.)s counsei excepted. The judge also charged, that, if the defendant had any fund, or the control of a fund, which was to pay for these stones, and he knew that the plaintiff was to rely' on that fund, he was responsible. To which instruction, another exception was taken.
    The jury rendered a verdict in favor of the plaintiffs, but the judgment entered thereon was reversed at general term, and a new trial awarded; whereupon, the plaintiffs appealed to this court, giving the usual stipulation.
    
      Reynolds, for the appellants.
    
      Hand, for the respondent.
    
      
       Also reported in 4 Trans. App. 192.
    
   Grover, J.

The evidence excepted to by the defendant was inadmissible; it had no legitimate bearing upon any issue in the case. The issue was, whether the defendant, by any agreement or act of his, had become liable to the plaintiff for the price of the stone in question. The fact that he had, before the delivery of the stone, loaned O’Donnell money, for which he was indebted to him, at that time, had no tendency to show any agreement to pay for the stone, nor any liability therefor, upon any of the grounds claimed by the plaintiffs.

The learned judge erred in charging the jury, that if O’Donnell agreed to pay for the stone, in the notes of the defendant, and the sale was made on the faith of receiving such notes, that would make the defendant liable therefor. The charge assumes that the plaintiffs sold the stone to O’Donnell, and that the latter agreed to pay the plaintiffs therefor, in the notes of the defendant, and instructs the jury that if the defendant knew that such an agreement was made, and the stone delivered by the plaintiffs, upon the expectation of receiving such notes, the defendant was liable therefor. This might all be true, and yet the defendant may never have agreed with O’Donnell or the plaintiffs, to give his notes for any such purpose.. Mere knowledge by the defendant, that O’Donnell had agreed with the plaintiffs to *give his notes in payment for property purchased by O’Donnell, imposed no liability upon the defendant.

It is not necessary to examine the other portion of the charge excepted to. The order appealed from must be affirmed, and judgment final rendered against the plaintiffs.

Order affirmed, and judgment absolute.  