
    Smith vs. Edwards.
    June, 1828.
    
      S assigned his entire stock of goods to E, but retained possession of it, went on with his business as usual, and made purchases from J, which when received into his store, wore placed among the merchandise assigned to E. After some time 8 failed, and E took possession of all the goods in his store, (among which were some of the articles received from S J sold them, and applied the proceeds to the payment of a debt due hint by S, and of endorsements made by him for 8. In an action by J against E for the goods sold and delivered to 8 — IMd, that there was no evidence. from which the jury might infera partnership, an agency or fraud between E a>nd S, so as to make E liable.
    Appeal from Baltimore County Court. Action of assump.sit. The declaration contained several counts — one for sundry articles properly chargeable in account, &c. one for goods sold and delivered, &c. and the usual money counts. The defendant, (now appellee,) pleaded non assumpsit, and issue was joined.
    At the trial the plaintiff) (the appellant,) gave in evidence that William Stansbury was a merchant, residing in Baltimore, occupying a store therein, in which he was accustomed to sell various articles of hardware, dry goods and merchandize, which he carried on in his own name, and for his own account, for several years previous to, and on the 30th of March 1824, and until the month of August of that year, during all which time he was in good credit, and was in the frequent habit of purchasing merchandize for his said store on his own responsibility. The plaintiff further gave in evidence, that on the said 30th of March 1824, the said William Stansbury executed and delivered to the defendant the following bill of sale: “Know all men by these presents, that I, William Stansbury, merchant of the city of Baltimore, for and in consideration of the sum of one dollar current money of the United States, to me in hand paid by Elizabeth Edwards of Baltimore county, at or before the sealing and delivery ef these presents, the receipt whereof I, the said William Stansbury, doth hereby acknowledge, have granted, bargained and sold, and by these presents doth grant, bargain and sell, unto the said Elizabeth Edwards, her executors; administrators and assigns, the following negroes, to wit: Negro George, negro Nance, Elizabeth and Henry, also a judgment I have obtained against Andrew Magrew in ihe state of Ohio; also my four wheel carriage, gig, all my household furniture of every kind and description in the dwelling-house that I at present occupy; and all my stock of goods on hand, consisting of a variety of hardware, groceries and dry goods. To have and to hold all and singular the said negroes, household furniture, and stock of goods, and all and singular the other personal property above mentioned, and bargained and sold as aforesaid, unto the said Elizabeth Edwards, her executors, administrators and assign*, forever. And I, the said William Stansbury, for myself, my heirs, my executors and administrators, all and singular the said negroes, household goods, and other personal property, unto the said Elizabeth Edwards, her executors, administrators and assigns, against me the said William Stansbury,■ my executors and administrators, and against all and every other person or persons whatsoever, shall and will warrant and forever defend by these presents.” Signed and sealed by the said Stansbury on the 30th of March 1824, and by him, on the same day, acknowledged before a justice of the peace for Baltimore county.
    The plaintiff further gave in evidence by Thomas J. Bar« ry, that he was, on the said 30th of March, long before auu until the month of August 1824, a clerk in the employ of said William Stansbury, that on the said 30th of March 1824, said Stansbury had in his store hardware and other merchandize, on sale, to the amount of from $1000 to $3000 dollars; that in the months of April and May 1824, the goods and merchandize specified in the following invoices, were sold and delivered by the plaintiff to the said Stansbury.
    
    “Baltimore, April 23d, 1824.
    Col. William Stansbury, Rot. of John W. Smith.” (Then follows an account amounting to $204 08.) Also “Col. William Stansbury Bot. of John W. Smith. Baltimore, May 13th 1834. (Then follows another account amounting to $110 00.) That the said goods and merchandize were received Into the said Stansbury’s store, accompanied with the said invoices, which goods were examined by the witness, compared With the invoices, found to agree, and the goods were placed on. the shelves in the said store occupied by Stansbury, alongwith the other goods in the said store; and all the said goods were indiscriminately offered for sale as usual, and part of the goods purchased from the plaintiff were sold from time to time with the other goods, and a part of them remained in the store in the early part of August 1834. During all which time the witness had no knowledge of the hill of sale above mentioned, and considered himself as the clerk of said Stansbury, and all the goods in the said store as belonging to said Stansbury. Thai the witness was first informed that the defendant had a bill of sale for the goods in Stansbury’s store, in the early part of August 1824, by Mr. Richard Frisby, the son-in-law of the defendant, who then, in her name, as her agent, demanded of the witness the key and possession of the store, which the witness refused to deliver until directed by Stansbury. That Stansbury on the same day directed the witness to deliver the key to Mr. Frisby, which he did; and that all the goods which remained in the store, including a part of those purchased from the plaintiff, but what proportion the witness does not know, were shortly after sold by Frisby, the agent of the defendant, at auction. And evidence was given, and it was admitted, that the proceeds of the sale at auction were about $2000. Which amount was received by an agent of the defeirlant, and part of it retained in satisfaction for money lent by her to Stansbury, and the residue applied to the payment of notes of Stansbury on which the defendant was security, as drawer or endorser, for the accommodation of Stansbury. The plaintiff also, by Edward J. Richardson, proved that the witness, as clerk to the plaintiff, made out the two invoices above inserted, and that the goods therein described were sold and delivered by tlw plaintiff to Stansbury, at, the respective dates mentioned m the said invoices. The plaintiff further offered in evidence, that the money for which the goods were sold at retail, was received by Stansbury during the months of March, April, May, and until the time when the goods in the store were delivered to Mrs. Edwards, and by him applied to the payment of his general debts, notes and household expenses, and to the reduction of notes which Mrs. Edwards had drawn or endorsed for the use and accommodation of said Stansbury. And the witness of the plaintiff, upon being asked by the plaintiff’s counsel, whether there was any agreement when the bill of. sale was executed, or at any other time, that the proceeds of the goods, or any part thereof, was to be received by Mrs. Edwards, the defendant, or applied to her benefit? replied, that none such was made or existed. That he himself had attended to the transaction for Mrs. Edwards, that he made none such, nor had she received any part thereof. Upon the cross examination of the plaintiff’s witness by the defendant’s counsel, he stated, that a note of Stansbury’s was protested for non payment, the day before the demand was made for the key; he also stated that he himself was on a note of Stansbury’s, and that Stansbury, in the said month of August, after the sale of the goods, transferred to the witness his books of accounts of the business, and the accounts, to him, to secure the debt for which he was so responsible. The defendant then prayed the opinion of the court, and their direction to the jury, that the plaintiff upon the evidence so given was not entitled to recover — 1st. Because there is no evidence offered to justify the jury in finding the existence of any co-partnership between the defendant and William Stansbury. 2d. Because there is no evidence offered to justify the jury in finding that the said store or business was carried on by Stansbury for the benefit, and on account of, the defendant, and that Stansbury was constituted her agent for that purpose. Sd. Because there is no evidence to justify the jury in finding that the said goods, wares and merchandize, mentioned in the invoices, were sold and delivered to the defendant by the plaintiff; and no evidence of any combination on the part of the defendant to obtain the p’aintiff’s goods by fraud. Which opinion and direction the Court [Hanson and Ward, A. J.J gave accordingly. The plaintiff excepted.; and the verdict and judgt ment being against him, he appealed to this court.
    
      The cause was argued before Buchanan, Ch. J. and Earle, Stephen, and Dorsey, J.
    
      Raymond, for the Appellant,
    contended, 1. That it was competent for the jury to infer from the evidence in the record, that Stansbury was the agent of the defendant below, and that the goods which he purchased of the plaintiff were for and on account of the defendant, and came to the defendant’s possession; and that the court below erred in their instruction to the jury, that the plaintiff was not entitled to recover. Q. That the court erred in not leaving the case to the jury npon the evidence. He cited Bank of Washington vs. Triplet & Neale, 1 Peter’s Rep. 31.
    
      Williams, (District Attorney of U. S.) for the Appellee,
    .cited Davis vs. Davis, et al. 7 Harr. & Johns. 36.
    
   JUDGMENT AEEIRMEB.  