
    Winslow vs. Kelley.
    In assumpsit to recover the price of goods sold, the plaintiff, to show the sale and delivery, called a witness, who testified that he received the goods of the plaintiff on the defendant’s account and in pursuance of verbal directions from him; but the Court held the witness to bo inadmissible, it appearing that the witness was not the agent of the defendant, and that the goods never came to the defendant’s use or benefit.
    
      Assumpsit on an account annexed to the writ. The only question in the case, arose from a charge of $1,50 for a quantity of yarn. To show the sale and delivery of this, the plaintiff} among other evidence, called one Melvin as a witness, who testified that he received the yarn of the plaintiff for his own use, on the defendant’s account, in pursuance of verbal directions from him. The Competency of this wdtness wms denied by the defendant’s counsel; hut Perham J. before whom the cause was tried in the C. C. Pleas, admitted him, though it appeared further, that the witness did not in the transaction, act as the agent of the defendant, and that the yarn never came to the defendant’s use or benefit.
    
      A verdict being returned for the plaintiff, the defendant’s counsel filed exceptions to the ruling of the Judge, pursuant to the statute, and by writ of error, (the cause having been commenced originally before a Justice of the Peace,) brought the case into this Court.
    
      Allyn, for the defendant,
    cited 2 Stark. Ev. 747; Emerton v. Andrews, 4 Mass. 613 ; Jones v. Brook, 4 Taunton, 464; 1 Camp. 408; Maxwell v. Pike, 2 Greenl. 8; Henderson v. Sevey, 2 Greenl.- 139; 1 Johns. 517.
    
      F. Allen, for the plaintiff,
    insisted that the interest of the witness was balanced, and cited the following authorities: Webb v. Margnard, 16 Johns. 89; JDescadillas v. Harris, 8 Greenl. 298; Phillips v. Bridge, 11 Mass. 242; Thompson v. Snow, 4 Greenl. 264.
   Parris J.

— It being expressly found, that in making the purchase, Melvin was not the agent of Kelley, and that the article purchased was for the use of Melvin and was never appropriated for Kelley's benefit, we think this case presents stronger objections in principle, against the admissibility of Melvin's testimony, than the case of Hewett v. Lovering, decided on the present circuit, ante, p. 201, or any of the cases there cited.

Upon the authority of that decision, as well as of Emerton v. Andrews, 4 Mass. 653, we sustain the exceptions. The judgment of the court below is, therefore, reversed.  