
    THE FISK PAVEMENT AND FLAGGING COMPANY, Plaintiff and Respondent, v. CHARLES E. EVANS, Defendant and Appellant.
    I. Appeal.
    1. Conflicting evidence, how considered on. a. Appellate court must consider that part of the evidence which was in the court below found to be entitled to credence.
    II. Evidence—admissions by silence.
    1. The receipt by a purchaser without objection of a bill naming a certain person as .seller, and specifying the amount of the goods sold, constitutes an admission,
    1. That the dealings were with the person named as owner of the goods.
    2. That the amount specified was the agreed pnce of the goods. . ■,
    XU. Cause of action not set forth in the complaint.
    1. No recovery can be had thereon.
    
      1. This, although issue is joined as to the cause of action set forth.
    IV. New Trial.
    1. What sufficient ground, for on appeal.'
    
      a. The permitting a plaintiff to recover on a cause of action not contained in the complaint, is sufficient ground for, Unless,
    the plaintiff elects to remit the amount so recovered.
    Before Monell, Ch. J., and Freedman and Sedgwick, JJ.
    
      Decided June 1, 1874.
    Appeal by defendant from judgment upon report of referee.1
    The complaint averred that the plaintiff sold and delivered certain property to the defendant, and that the. defendant promised to pay therefor eight hundred and eighty-seven dollars.
    The answer deniéfét each and every allegation of the complaint, and for a separate defense, averred that the defendant purchased certain property of one B. W. Ranney, for which defendant agreed to pay three hundred and ninety-five dollars, upon condition that the property should be delivered in a good and perfect state off the day after the purchase, at pier No. 1, North river, in .the city of New York ; that it was not so delivered, but was delivered several days after the agreed day, in an imperfect condition; that by reason of “ said failure to comply with the conditions of said agreement to purchase, this defendant was obliged to pay large amounts .of extra freight on the same, and to supply at his own expense portions of said goods and implements which were necessary to the use of the same,” but had not been delivered, and that by said failure of said Ranney to cómply with his agreement, this defendant was damaged to the amount of two hundred dollars ; that “ the facts hereinbefore alleged, are the same which are referred to by the plaintiff, in the complaint herein, as constituting the cause of action against this defendant,” and the defendant demanded that said amount of two hundred dollars be set off.
    Before the'referee it was testified to that the defendant went to an office in which E. W. Ranney did his private business. By the side of its door was a sign having the name of plaintiff. Mr. Ranney testified that ne was secretary of the company, and as secretary, negotiated at that office with the defendant about the sale. At the interviews it was not said that MrRanney was acting for the company. The defendant testified that Mr. Ranney, at the time, said he sold the property as his own. The defendant went to see the property before he bought it, at the yard belonging to the plaintiff. There, before the contract of sale was completed, the foreman of the plaintiff showed the articles to defendant, to enable the latter to make his choice. The bills for the property rendered to the defendant were made in the name of the company, and for the sum of six hundred and eighty dollars. There was no specific testimony that the plaintiff- owned the goods.
    The testimony was conflicting as to the terms or conditions on which the sale was made.
    The goods, the referee found were sent and shipped at the request of defendant, at an expense of fifty-seven dollars and fifty cents.
    The referee found that the plaintiff was entitled to recover six hundred and eighty dollars and interest for the goods, and fifty-seven dollars and fifty cents for expenses of sending and shipping.
    From the judgment entered on the report the defendant appeared.
    
      
      B. E. Valentine, for appellant and defendant.
    
      J. K. Herbert, for respondent and plaintiff.
   Sedgwick, J.

The first exception is that the evidence did not support the finding of the referee that the defendant agreed to buy the. goods of the plaintiff ■corporation. The evidence, although meagre on this point, is sufficient to support the referee’s conclusion. So far as there was a conflict of testimony, we have to use that part which the referee must have found was ■entitled to credence. If the minute circumstances that •appear in the case were not enough to show that the defendant knew he was dealing with the corporation, the fact that the bills sent to him named the corporation as seller, and therefore owner, is decisive. This exception must be overruled, on the evidence. We do not, by implication, say that if Banney in fact acted as agent for plaintiff in selling the goods, but did not disclose the agency, the principal is not the proper plaintiff. If there were any offset against Rannev, it would be preserved in a proper case, if pleaded, in an action by the principal.

The exception as to the amount, found due by referee must, for the same reason, be overruled. Not only had the referee a right to rely on the testimony for plaintiff, generally, as to this, but the rendering of the bill for the amount of six hundred and eighty dollars, no dissent being made from it at the time on that account, was a basis for the finding.

There being a difference between plaintiff’s witnesses and defendant’s witnesses as to whether the sale was made upon the terms or conditions stated in the answer, the referee is to be upheld in the conclusion he reached, that the former gave the transaction correctly. Indeed, the letter written by the defendant to the plaintiff’s foreman strongly corroborates, the plaintiff’s position.

In that letter the defendant directed the .foreman to send the. goods to a certain place, and promised to pay the cost of doing it. The referee gave judgment in favor of plaintiff for this in the amount of fifty-seven dollars and. fifty cents. The complaint made mo claim for this. The. testimony does not show that the agreement to pay it was a part of the original contract of purchase. In my opinion, it was a cause of action distinct from the one; on which issue was taken.

For the reason last stated, the judgment should be, reversed, and a new trial ordered, with costs to appellant, to abide event, unless the respondent elects to remit fifty-seven dollars and fifty cents, with interest, • from March 6, 1872, in which case judgment will- be-affirmed without costs to either party.

Monell, Oh. J., and Freedman, J., concurred,  