
    James L. Clark, Appellant, v. Andrew J. Smith, Respondent.
    (City Court of New York—General Term,
    March, 1894.)
    Where the jury have found for the plaintiff upon conflicting evidence, but in a smaller amount than claimed by him, and there is any evidence to support their findings, the verdict will be sustained.
    It is too late upon appeal to complain for the first time of the charge of the court.
    Where an agent pays his own personal debts with money belonging to his principal, without his authority, the person receiving it cannot retain such money, but must .return it or credit the principal with it on his account with him.
    
      Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury.
    
      J. George Flammer, for appellant.
    
      Charles F. Holm, for respondent.
   McCarthy, J.

This is an appeal from a judgment entered on the verdict of a jury, and the action is for the sale and delivery of goods.

The defendant claims that certain payments were made which, if applied to the defendant’s indebtedness, would leave a balance of $186.87, which balance the defendant admitted he owed. »

The defendant proved by the plaintiff’s own witness, Peterson, who had kept the books, that the aggregate purchase of merchandise by the defendant from the plaintiff was $770.79. The defendant claims that the payments made to the plaintiff aggregated $583.42. These payments, if made, were all made subsequent to the purchase of the store by the defendant, and were paid out of the proceeds of the defendant’s business.

Plaintiff’s witness testified to various payments, aggregating $396.20, having been made on Smith’s account, and covering a period of time the same as that of the plaintiff’s statement of merchandise sold, and no credit or mention whatever is made of these payments.

If there ever was a case where there was a positive and continued conflict of evidence on the material issues, this was one. It Avas purely a question of fact, and certainly required the jury to settle and determine the many contradictions in the testimony.

They have found for the plaintiff, but in a smaller sum than claimed by him. Where such appears, and there is any evidence to support the findings of the jury, their verdict will he sustained.

The trial justice in his charge fairly submitted the questions of fact to the jury, and excepting one request, no other was. asked by plaintiff, nor was any exception taken to this-charge.

It is too late now for plaintiff’s counsel to complain, to use his language, as per his brief, that the court did not seem to be able to grasp the situation and charge the jury, since had counsel grasped the situation he could have requested the court to charge any other proposition of law which might have occurred to him, and, if proper, I have no doubt the trial justice would have so charged.

We must dispose of this appeal on the case as presented', and not on what ought to have been or what might have been.

The defendant would be bound by the acts of Peterson only so far as authorized, or in the line of his authority, and where Peterson paid his own personal debts with the money belonging to his principal, without his authority, the third person, the plaintiff here, could not retain such moneys, but must return them or credit the defendant with the same on the general account.

The jury have believed this to he the state of facts, and have, therefore, credited these ■ amounts and found a balance due the plaintiff.

While the evidence is very conflicting, we find no error on the part of the trial justice, and judgment should be affirmed, with costs.

Uewbuegeb, J., concurs.

Judgment affirmed, with costs.  