
    George P. Hier et al., Appellants, v. Henry J. Grant et al., Respondents.
    The simple proof of the fact that a conversation was had with a deceased person, without proof of the conversation itself, is not obnoxious to the objection, that it is proof of a transaction or communication within the meaning of section 399 of the Code, unless it may be in a case where the mere fact of a conversation is the material thing to be proved.
    In an action for goods sold and delivered, which are claimed to have been purchased by defendants’ agent, it is not necessary to set up in the answer a revocation of the authority of the agent, and notice thereof to the plaintiffs, prior to the sale. Such evidence is proper under a general denial
    (Submitted December 22, 1871;
    decided January 23, 1872.)
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of defendants, entered upon the report of a referee.
    The action was brought to recover a balance of account for a quantity of tobacco alleged to have been sold by George P. Hier & Co. to the defendants, on the 16th day of August, 1867, at the agreed price of $629.80; the balance claimed, $380.80, and interest from the day of such alleged sale.
    The firm of George P. Hier & Co., at the time of the alleged sale, consisted of Hier and Plumb, plaintiffs, and John Schnauber, since deceased.
    The only issue made by the answer was a denial of the sale of the tobacco to the defendants.
    
      It appeared in evidence that one William H. Hoyt purchased the tobacco in question, and it was charged, $629.80, on the books of Hier & Co. to the defendants.
    Hoyt had purchased four several bills of tobacco of Hier & Co., from August, 1866, to May 23, 1867, in the name of defendants, who subsequently paid for them.
    The tobacco in question was forwarded, marked “H. J. Grant & Co. (defendants’ firm name), Ithaca, H. Y.,” and forwarded by railroad and lake. On arrival at Ithaca, a cart-man, who usually did defendants’ carting, took the cases, and, under order and direction of Hoyt, did not unload that night, but drove it down under his own shed, and unloaded it in the morning. He delivered it where he was ordered to leave it, and Hoyt directed where it should go. Hoyt received the tobacco, and put it into his own cellar.
    Defendants severally testified that they knew nothing of this tobacco being sold to Hoyt, or delivered on their premises, until receipt of plaintiffs’ letter of October 24,1867. Defendants promptly repudiated the claim, and informed Hier & Co. that they knew nothing of it.
    On August 13, 1867, three days before the purchase by Hoyt, defendants had told plaintiffs not to let Hoyt have any more tobacco on their account, without a written order; and, prior to that, had told Hoyt not to buy any more on their credit.
    Hpon the trial the question was asked defendant H. J. Grant whether he had “ any conversation with Schnauber in relation to selling Hoyt tobacco.” Plaintiffs’ counsel objected to it, “ as calling for a transaction or communication with a deceased person.” Objection overruled. “ A. I did.” A similar question was asked defendant C. L. Grant, Jr. Both questions were followed by asking what was said; to which plaintiffs’ counsel objected, and objection was sustained.
    The referee found that defendants did not purchase the tobacco in question, and dismissed the complaint.
    
      R. Raynor for appellants.
    
      
      Ferris & Dowe for respondents.
    Where there is a conflict of evidence, the finding of referee will not be disturbed. (Keeler v. F. Ins. Co., 3 Hill, 251; Eaton v. Burton, 2 id., 518; Fleming v. Hollenback, 7 Barb., 271.) A ruling that can work no harm, not ground for new trial. (Page v. Ellsworth, 44 Barb., 636.)
   Church, Ch. J.

The finding of fact by the referee that the defendants did not purchase the tobacco in question of the plaintiffs, as alleged in the complaint, was not only fully justified by the evidence, but it is difficult to see how any other conclusion could have been arrived at. Although Hoyt had, on several occasions, purchased tobacco of the plaintiffs for the defendants, yet after the plaintiffs were expressly notified not to sell any more without a written order, the subsequent sale was unauthorized.

Mor did the defendants receive the property, or have the benefit of it. They purchased cigars of Hoyt, and paid for them, as they had a right to do, without rendering themselves liable for the materials used by him in their manufacture, and it does not appear that defendants knew even where the tobacco came from. Besides there is uncontradicted evidence tending strongly to implicate the plaintiffs or some of them, in a conspiracy with Hoyt to purchase this tobacco, which was Mew York State leaf, manufacture it into cigars, and sell them to the defendants, as made from Connecticut tobacco, which was about double in value.

The tobacco was charged to the defendants at the price of Connecticut tobacco for this purpose after the deceased member of the firm, if not the others, had been notified not to let Hoyt have any more tobacco without a written order, and this fraud was further developed by the 'manner in which Hoyt disposed of the tobacco for his own benefit after its arrival at Ithaca. A contrary finding would have been destitute of any legitimate evidence to sustain it.

Mor was there any error committed on the trial. The question to one of the defendants, whether he had a conversation with the deceased partner, Schnauber, in relation to selling Hoyt tobacco, was not obnoxious to the objection that it called “ for a transaction or communication between defendant and a deceased person.” The fact of having a communication was not a transaction within the meaning of the Code, nor was it a communication. The referee sustained the objection to the question calling for the conversation, and allowed the witness to state only the fact that he had one. Although such a question is upon the threshold of forbidden ground, I do not think it violates the statute, unless, perhaps, in a case where the mere fact of a conversation is the material fact to be proved. The communication made was the important fact in this case, and the circumstance that a conversation was had, was immaterial, and no more important than would be the circumstance that the defendant had seen Schnauber on a certain day. Besides the plaintiffs could not have been injured by the answer. The notice to Schnauber was proved by one witness who was present and heard it, and by Hoyt himself when he purchased the goods, that Schnauber told him he had received the notice, and if there had been no evidence of the conversation itself, the result could not have been .changed.

The manner in which Hoyt carried on business, the fact that no freight bill was presented to the defendants, and other circumstances of that character, were pertinent upon the issue whether Hoyt purchased the tobacco for defendants or for himself, and upon the question, whether defendants actually had or received it, and. were competent evidence. It is objected that the revocation of authority to Hoyt, and notice of the same to the plaintiffs should have been set up in the answer. This objection has no foundation. The complaint alleged a sale to defendants, which the answer denied. The complaint would have been sustained by proof of a sale to defendants by their agent, and the question of agency determined the issue.

Such allegations would have been improper. Pleadings should contain facts, not evidence.

There áre no legal grounds for this appeal, and the judgment must be affirmed with costs.

All concur.

Judgment affirmed.  