
    Smith & another v. Leland.
    Where goods purehased by, and delivered to A for his own use and as his own property, are, by his direction, charged to B, the transaction is within the mischief that the statute of frauds was designed to prevent; and in an action against B, the parole evidence against him, as purchaser, ought to be free front any suspicion.
    A recovery in such an action ought not to be permitted when A is the only witness on behalf of the seller of the goods, and is contradicted by other witnesses.
    Nor ought a recovery to be permitted, where the complaint avers that the goods were sold and delivered to B.
    The authority of A to make the purchase in the name of B, and the delivery of the goods to him, with the consent of B, are material and issuable facts, which the plaintiff is bound to prove upon the trial, and is, therefore, bound to aver in the complaint.
    (Before Oakley, Ch. J., Emmet and Hoffman, J.J.)
    November 18;
    December 10, 1853.
    Upon these grounds, report of a referee set aside, and order of reference vacated.
    Appeal, by the defendant, from an order at special term, setting aside the report of a referee in favor of the plaintiff.
    The action was for goods sold and delivered to the defendant, and work performed for Mm, and at his request. The answer merely took issue on the allegations in the complaint.
    The cause was, on January 10th, 1852, referred to Michael Ulshoeffer, as sole referee, before whom, on the trial, the following testimony was given :
    
      Ma/ry Ann fflidds, sworn for the plaintiffs, testified: I know Jeremiah Lounsberry, the gentleman present; I did not know him at the time I purchased the goods in question; J do not know the plaintiffs personally; their store is in Pearl street, opposite William street; I went there, and saw the man present here, in May a year ago in 1850; I knew the defendant; I purchased the goods amounting to one hundred dollars or a little over; they wére carpets and three door mats ; they were for the house in which I resided, Ho. Ill Fourth Avenue ; the arrangement was tMs, I was to furMsh the house, and my son-in-law, Mr. Simpson, was to board with me, and to pay every three months, but he did not pay, and I could not get along ; I wanted money, and I went to borrow it of the defendant; I asked the defendant to lend me one hundred dollars; he said he could not that day, that he had paid away Ms money; I told Mm I was sorry, as I wanted some very much, and told him what I wanted to do with the money, and he told me that he could do the same thing for me as letting me have the money; he told me he regretted he had not the money to lend me, and asked me what I wanted it for; I told him I wanted it to purchase carpets, that my husband had not the money for me, and that I did not want my husband to know that I had applied to borrow it; Warren Leland then said he could arrange it just as well for me as to lend me the money; he asked me if I knew Smith & Lounsberry •; I said I did not; he told me where their store was, and to go down to their store in Pearl street, opposite William street, and see if they had the carpets I wanted, and, if so, to purchase what I wanted, and tell Smith & Lounsberry to charge the carpets to him; I then told him I did not wish my husband or his brother to know this, and I stated to him that I would pay him as soon as I could; I expected some money soon; he replied it will be all right; I went to the store alone, I had never been there before; I asked to look at some carpet, and found some that suited me; (defendant said to me, go down to the store, and get what you want, and tell them to charge it to Warren Leland; I said to him I did not want my husband or his brother to knowit,) but would not purchase until I could bring my daughter down with me to see them ; I asked the gentleman in the store whether he knew Mr. Warren Leland ; he said, he did, very well; I told him the carpets 1 wished to purchase were to be charged to Mr. Leland; he said, very well; I then went home and wrote Mr. Leland that I had seen carpets that suited me 5 to this letter I received no answer;
    I wrote it only, not that I had promised to do so, but because I thought it was but civil to write to him informing him of it; after that I went down to the store with my daughter, and selected the carpets with her; I saw a gentleman at the desk, and asked him if he knew Mr. Warren Leland, he said, very well indeed; I then said I wanted to purchase on Mr. Warren v Leland’s account, and wanted them charged to Mr. Warren Leland; the gentleman Said it was all right; I purchased the goods, they were made up and sent home.
    The bill produced, and shown her—the witness testified, that is the bill.
    The bill amounted to $100-I5oV
    Cross-examination.—I have been shown the bill of these - goods before, some time last spring, the spring after they had been purchased; a young man from the plaintiffs’ store brought the bill to me, and said, here is a bill of carpeting got by you from the plaintiffs; I said to him take that bill back; I asked him if it had been presented to Mi*. Leland; he said he did not know, that the defendant was abroad or in California; I do not remember the bill being presented again until the gentleman present called with it; I think it was a brother of the one present, Mr. Lounsberry, a brother of one of the plaintiffs’ firm; he said they had sent to Mr. Leland, and he would have nothing to do with it, and then said you have bought the goods on false pretences; they made no threats to me; I said I would go and see him myself, and have the matter explained properly; I went to see Mr. Leland, the defendant, and did see him; these were the only times the bill was presented to me, as far as I remember.
    
      Q. What conversation passed between you at that time ?
    Objected to; objection sustained. Defendant’s counsel excepts.
    
      Q. At the first interview you had with defendant, when you went to borrow money, did not defendant say, upon the plaintiffs being named, “ you go to them (the plaintiffs), and refer to me, and they will sell you the carpets, I presume ?”
    
      A, No, he did not say so.
    
      Q, Did he not say, “ Glo there, and refer to me ?”
    
      A. No, he did not.
    
      Q. Did you not state to me (Cyrus Lawton, counsel for defendant), in Twelfth street, that the defendant did not authorize you to have the goods charged to Mm?
    
      A. I did not; I tMnk I remember the conversation as near as possible ; I do not remember saying anytMng of that kind; when I conversed with you, you said you would see the defendant, and advise him to settle the matter; I don’t remember any thing more; I went to Mr. Leland’s in the morning about 9 o’clock, and he told me where the plaintiffs’ store was, and I went directly there, and looked at some carpets, and found they would suit me ; I then went home to the Fourth Avenue, and wrote a note to Mr. Leland, but got no answer; my daughter wrote the note as I told her.
    
      Q. Did you not purchase carpets of another person, and tell them to charge it to Warren Leland, and did not they refuse to deliver them to you because defendant had refused ?
    
      A. Never: I will tell you what you refer to; when I went back to purchase the carpets of Smith & Lounsberry, I by mistake got into the adjoining store to that of Smith & LounsberTy; I asked the clerk if this was Smith & Lounsberry’s store; he said it was; I went up stairs with the clerk, and selected the carpets and rugs, came down, saw a gentleman at the desk, and asked him if he knew Mr, Warren Leland; he said he did; I told him I wanted to purchase goods on Warren Leland’s account, to be charged to him; he said it was all right; I then left without discovering my mistake; the carpet was made and sent to my house with the bill, subject to my daughter’s approval of the carpet; she did not like it; I then discovered the mistake, and refused to let him leave the goods; I told them that they had imposed upon me by representing themselves to be Smith and Lounsberry, and I would not receive their goods; in a few days after this my daughter and myself went down to Smith & Lounsberry’s, and made our selections, and we then told how we had been treated by the people next door,
    Foe the Deeehoe.
    
      Jeremiah Lounsberry was sworn and testified; I am a clerk for the plaintiffs; I Was at the time (May and June, 1850), the carpet in question was sold; Mrs. Hidds’s interview was with Mr. Smith, one of the plaintiffs; I know that the note was written at the time in the store to Mr. Leland, which was sent by a porter; we were not in the habit of selling goods; and charging them to other people without an order, and we would not in the usual course of business have delivered the goods without seeing the defendant; it was in the afternoon, and the carpet was lying on the walk when we sent to Mr. Leland; I was in the store when Mrs. Hidds first came there; her interview was with Mr. Smith, one of the plaintiffs; Mr. Smith and Mrs, Hidds went up stairs together to look at carpets ; when they came back, they went to the desk, and Mrs. Hidds wrote a letter to Warren Leland, and the porter took it, and was told to make haste back; I never before the goods were delivered went to Mr. Leland’s to ask if it was right to charge Warren Leland for the goods sold to Mrs- Hidds; I did not go to Clinton Hall in the spring dr summer of 185Ó, to ask any questions in relation to the matter; I went to Clinton Hall in the fall of 1850, to collect this bill, and was then informed that Warren Leland was out of town ; the bill Was not made out or presented until the fall of 1850 ; Mrs. Hidds the morning she and her daughter came and selected the carpet, stated the people next door had deceived her by inducing her to believe that their store was ours<
    
      Simeon Lelmd, sworn for defendant, testified: Í formerly kept the Clinton hotel, my brothers keep it now 5 the defendant is one of the proprietors now 5 I recollect in May or June, the circumstance of the carpet sold to Mrsj Hidds by the plaintiff; I am frequently in at the Clinton hotel, and when there assist them; I reside at New Rochelle^ and when in the city am at the Clinton hotel; I know the plaintiffs^ and have for a long time; we were in the habit of referring people there to buy carpets; there was a land of under-standing; we referred people stopping at our house, and to them we were not to be respom sible, and nobody ever thought of such a thing; I was at the hotel in the last of May or first of June, 1850, when a porter of the plaintiffs came, and wanted to know if it was all right to deliver the carpets and things to Mrs. Hidds, which she wanted. I told him no, and not to deliver it, for if Warren wanted to assist her he would have given her the money, and the man Went away, and very shortly returned with Mr. Lounsberry, here present, and I told them the same thing; they had a bill of the carpet, but Said it had not been delivered, and they huti-ied away to stop its being delivered; Warren Leland was not in town, and they did not see him, he had left a day or two before, and gone to Cleveland, Ohio ; he was gone from six to ten days, on business; I recollect the matter perfectly Well; the defendant Went to California in December, 1848; he was here in 1850 ; he was home inHovember, 1850 ; and again went to California; my brother Charles was present at the conversation referred to.
    
      Oha/rles Leta/nd, sworn for defendant, testified: i am one of the proprietors of the Clinton hotel; I recollect the plaintiff’s porter and clerk calling at the office tif the hotel fol* Warren Leland, and hearing conversation about Carpeting, With Simeon; Warren had been away for-six or sSvéh days; I heard my brother Simeon talk rather short to the man who came for payment of the bill; this was, say, June, 1850; the bill was taken away, because my brother Simeon said he did not know any thing about it; I recollect saying to my brother Simeon, “ Don’t be so hasty, it may be right after allthe bill came in for payment, as I supposed; I was only present at the interview ; I think two persons came.
    
      O. 0. Wilsonsworn for defendant, testified: I know the plaintiffs, and was engaged in business next door to them in 1850; Mrs. Midds called at our store in the latter part of May or June, 1850, and selected some carpets ; she said, “ Send the bill to Mr. Leland, at the Clinton hotel;” she gave the address of the defendant, and where to send the carpet; she said nothing about Smith & Lounsberry; we sent to Mr. Leland, the defendant; I went and saw him, and we then sold Mrs. Midds the carpet on her own credit, and had them made up and sent to her house with the bill of purchase, and when she saw the man with the bill, she shut the door, and would not let the carpet or the man into the house.
    Our store was 450 Pearl street, and the plaintiffs’ was Mo. 448 Pearl street; we measured the rooms of Mrs. Midds, and made the carpet, and we sent it two days after the purchase ; she said nothing about the plaintiffs, and had not then purchased any carpet of them; it was in or during these two days that I had seen Mr. Warren Leland ; I had no authority to charge the carpet to the defendant, either from him or Mrs. Midds, and did not do so: I am not in the carpet business now.
    On cross-examination, witness testified: My store was next door to Smith & Lounsberry; we did not send the carpet to her the day she engaged it, but a day or two afterwards; I saw Warren Leland before I sent it to her; a clerk of ours, Mr, Merrill, first saw Mrs. Midds, and went up stairs with her to select the carpet; Merrill came into the store with her; I did not have any conversation with her until she came down stairs and selected the carpet; after she sent the carpet back, she said we had deceived her, that she went to purchase of S. & L., and that we had represented another as theirs.
    
      
      Gyrus Lmoton, sworn for the defendant, testified: After this suit was brought, at the request of the defendant, I called on Mrs. Ridds, to inquire of her what the facts were, and she stated that she wanted some carpets, and Went to defendant to borrow money to buy them; he declined, but told her she had better go to Smith k Lounsberry, and refer to him, and he had no doubt they would sell her the carpet on time ; I asked her if the defendant had authorized her to have the goods charged to him; she said, “ Ro, but she thought she might do so I then told her, if he did not authorize her to have the goods charged to him, I did not see how they could recover and make him pay for them, and that I should advise Mr. leland to defend the suit; she said she hoped I would not, but would try to get the defendant to settle it, for she said the plaintiffs had been there, and had threatened to have her arrested for getting goods under false pretences, and to get her in difficulty, that she had not the money, and she was afraid she would get into trouble.
    Upon his cross-examination, this witness testified: The idea I wished to convey to her was, that he did not use the word “ charge;” I then told her, if he had not used the word “ charge,” the plaintiff could not recover.
    The parties having rested and summed Up, the referee after-wards made his report in faVOr of the plaintiff, for '$101.82.
    The decision of the referee not being satisfactory to the defendant, he obtained an order for a review of the testimony, &c., which was heard before Mr. Justice Paine, at a special term, who, having heard counsel for the respective parties, on the 15th March, 1853, made an order setting aside the report of the referee, and gave the following opinion.
    Paine, J.—This is a perplexing Case to dispose of, as it is Clearly within the spirit and mischief of the statute of frauds, and yet, perhaps, has been taken Out Of it by the course of decisions, Rut I think, that in looking at the evidence in such a case, we should still be governed by the spirit of the statute, and its acknowledged object; and, that where' there is the same inducement to fraud and perjury as it contemplates, the parole evidence should be free from suspicion.
    The only proof in this case of a promise of a third person to pay a debt, is the testimony of the debtor. But she is distinctly contradicted by a respectable Witness, upon the point upon Which the case turns, She says the defendant told her to tell the plaintiffs to charge the goods to him, and that she did so. On her cross-examination she is asked, “ Did you not state to me, Cyrus Lawton, that the defendant did not authorize you to have the goods charged to him ?” Her answer was, “ I did Hot.” Mr. Lawton’s testimony upon that point is this, “ I asked her, if the defendant had authorised her to buy the goods, and have them charged to him ; she said no, hut she thought she might do so.” He also states some other facts, which affect her credibility.
    As the plaintiff is always bound to make out his case by satisfactory evidence, that burden being upon him, I am obliged to say in this case, that I do not think he has done so.
    1 will state another ground upon which 1 am inclined to think the plaintiffs cannot recover < although I do not place the decision on that ground. Admitting that Mrs. Kidds has proved, that she was the agent of the defendant to make a promise for him, in a transaction Where he was not principal, and had no earthly interest, and where' she alone was principal, and had all the interest, admitting that this may properly be called an agency, and that therefore the defendant was hound by the promise she made for him, yet I see no proof in the case, that she Was constituted his agent to accept and receive the goods for him; and 1 do not think that in such a case we are to strain the evidence for the purpose of presuming or implying an agency for that purpose. The declaration in this case avers a sale and delivery to the defendant. This may he the right form of declaring, although I think that principle and the Weight of authority are against it, "Where the whole credit is given to the defendant, as it must be, and it is so proved, there is sound reason to say, that the goods are sold to the defendant. Bnt where in such case the goods are avowedly bought for a third person, and for her use, in the absence of the defendant, and without any authority being proved to deliver them to her; and where they are proved to have been delivered to such third person, for her exclusive use, with the full understanding that she is never to deliver them to him, but is to keep them herself, and for herself, I am unable to perceive, how the averment in the declaration, that they were delivered to the defendant, is at all supported. The courts have so far dispensed with the statute, as to have settled, that the authority of an agent need not be in writing, although his execution of it must be ; but surely we are not to go further, and say, that the authority need not be expressly proved, but may be implied without proof.
    The statute requires, that where the price of the'goods is over fifty dollars, the buyer shall accept and receive a part of the goods, or pay part of the purchase money. The buyer, in this case, both by the averments of the declaration and the necessary conclusion of law (if the defendant is to be held liable) was the defendant. But the goods were never accepted and received by him, nor by any one proved to have been his agent for that purpose.
    Still, I am unwilling to place my decision upon this ground, when I think the other less free iroin question.
    
      J. W. Gilbert, for the plaintiff,
    now moved that, the order made at special term should be reversed and judgment be entered for the plaintiffs, upon the report of the referee. He relied upon the following points and authorities.
    I. The testimony of Mrs. Nidds proves a sale and delivery of the goods in question to the defendant—by showing: 1. An authority to make the purchase for the defendant. 2, That such purchase was made. 3. A delivery of the goods conform-ably to her directions. 4. Mrs. Nidds was a competent witness to prove her authority and the other facts.
    H. An authority to purchase necessarily includes an authority to receive the thing purchased,
    HI. The case is not within the statute of frauds. &
    IV. The testimony of Mr. Lawton is insufficient to impeach Mrs. Uidds. 1. An impeachment cannot be made out by a single witness. 2. The reply of Mrs. Nidds to the question put by Mr. Lawton may be explained upon the supposition that she did not comprehend the purport, or effect of the question, and it is the duty off the court so to reconcile the testimony. 3. Upon the whole testimony of Mr. Lawton, it is doubtful what language he employed in putting the question, and Mrs. Nidds’ reply being merely “ Ho,” it would be harsh to conclude that she intended to make a contradictory statement,
    
      V. At most, the alleged contradiction of Mrs, Hidds merely affected her credibility. The referee sustained her, and his decision is final and conclusive. (5 Sandf. 190,)
    VI. The decision of a referee, upon questions of fact, will not be set aside. Unless it be manifestly against the evidence.
    C. Lawton, contra.
    
    
      I. The complaint in this action is for goods sold and delivered by the plaintiffs to the defendant, and there is no evidence in the ease either of a sale or delivery to the defendant. (Code) § 142, 111; 1 Chitty’s P. 0, 346.)
    II. This case is clearly within the statute of frauds, as held by bis honor Justice Paine. The undertaking', if any, was collateral, and there is no evidence that the goods were charged to defendant; (2d Term R. 80; 8 Johns. R. 39; Gallagher v. Bunnell, 6 Cow, R. 346.)
    III. An authority to purchase is not an authority to receive the goods, and any authority to act for another must be strictly pursued, and when proven by parol must be strictly construed, There is no pretence of an authority for the work and labor. (Dunlap’s Paley’s Agency, 202.)
    IV. The plaintiffs’ case rests solely on the testimony of Mrs, Hidds, which is contradicted and her evidence impeached, and is entirely unworthy of credit. (1 Stark, Ev. 582& 3 ; 2d Cow, Treatise, 983 to 9858 Cow. 60.)
    V, Mrs, Hidds was not a competent witness to prove the defendant’s liability; she was not the defendant’s agent, she says she was to buy for herself, but she does not say that the defendant promised to pay for the goods, nor did the defendant do any act from which the plaintiffs could infer or be led to believe that he intended to pay for them. (Shiras v. Morris, 8 Cow. 60; 1st Stark, Ev. 582 & 3; Filmer v. Flynn, 4 Nevile and Manning, 559; 2d Cow. Treat. 983-5.)
    VI. The plaintiffs had notice not to deliver the goods to Mrs. Nidds before they delivered them, which was a full revocation of all authority to purchase on the credit of the defendant, if any had been given,
    VII. The referee erred in not allowing the testimony as to what passed between Mrs. Nidds and the defendant at the second interview, The circumstances were peculiar, and the largest liberty ought to have been allowed on cross-examination,
    VIII. The equities of this case are all with the defendant. The plaintiffs and the Messrs. Leland had an understanding as to referring people to then* store to buy carpets, a part of which Was that they were in no case to be held responsible,
    IX. Upon the whole case it is clear that a gross fraud is attempted to be perpetrated upon the defendant in this action. The plaintiffs ought not to recover, and the order appealed from should be affirmed With costs.
   By the Court.

We are of opinion that the order made by our brother Paine, setting aside the report of the referee, must be affirmed, with costs, and this, not only upon the ground upon Which he has rested his decision, but also upon that in respect to which he has merely stated the inclination of his opinion. The Code requires that all the facts constituting the cause of action, must be set forth in the complaint, and the definition embraces all material and issuable facts; all that the plaintiff must prove upon the trial to entitle him to recover. When goods sold, are delivered to a third person for the exclusive use of such person, his authority to receive them, and their delivery to him, are material and issuable facts, which the plaintiff', in an action against the purchaser, is bound to prove upon the trial, and is therefore bound to aver in the complaint. Here the complaint neither avers the authority of Mrs, Ridds to receive the goods, nor their delivery to her, and the evidence bearing upon these facts which was given before the referee, is not only most unsatisfactory in itself, but under the complaint as framed, ought not to have been admitted. It is true that the delivery of goods sold to a third person for the use of such person, under an- authority from the purchaser, is, in judgment of law, a delivery to such purchaser; but it is so, not as a fact, hut as a conclusion of law, and we have repeatedly held that they are the facts from which the proper legal conclusions may be drawn, and not the conclusions themselves, that must be stated in the complaint.

We do not think that we are concluded by the finding of the referee upon the main question, whether Mrs, Hidds was authorized by the defendant to purchase the goods in his name. Her testimony is not merely suspicious in itself, hut she was materially contradicted by the witness Wilson, as well as by Mr. Lawton. Giving to the finding of the referee the same effect as to the verdict of a jury, we think it may he properly set aside, as against the weight of evidence.

Order appealed from affirmed, with costs, and rule for a reference vacated.  