
    JOSEPH W. FISKE, Plaintiff and Respondent, v. CHARLES F. ALLEN, Defendant and Appellant.
    I. CREDIT, TO WHOM GIVEN.
    t. Charge and proof as to issue on.
    
      a. Charge. A charge that if defendant did or said anything from which plaintiff had a right to suppose that the sale was being made to him and not upon the responsibility of any other party, he would be himself liable, without adding the proviso, “if the plaintiff meant to sell to him,” or some phrase of similar import, does not constitute error.
    This proviso is'implied in the words of the charge; for 1. Plaintiff could have no right to suppose that a sale was being made to defendant unless he had done or said what was necessary to make himself a party thereto.
    
      b. Proof.
    1. The original order being in writing purporting on its face to come from a person other than the defendant, and by that person written in the order book, and it being brought out-on plaintiff’s cross-examination that the sale was entered in the other books as being made to such other person, the admission of evidence on tlie re-direct, that the entries in the other books were taken from the entry in the order-book, is not canse for reversal. It did not injure the defendant..
    2. Where the defendant introduces proof that by a contract, between him and the person to whom the plaintiff charged the goods, lie was bound to pay such pert on for the goods, it is not error to allow the plaintiff to prove that defendant has not paid such person.
    1. This is an application of the principle that proof otherwise immaterial and improper, may by the course of the trial become material and proper.
    
    8. Entries in books of account making charges against a particular person, a,re not conclusive evidence that the credit was given to such person.
    Before Cttbtis and Sedgwick, JJ.
    
      Decided August 3, 1875.
    Appeal from judgment entered on verdict.
    One Chamberlain had a contract with the defendant in which it was provided, that Chamberlain should build a house for the defendant, furnishing the materials therefor, among other things, iron work called cresting. By the terms of the contract, Chamberlain would be repaid for this cresting in the last instalment provided to be paid by the defendant. Before the contract was completed the defendant and Chamberlain saw the plaintiff, who was a dealer in the kind, of iron work referred to, at his office. The plaintiff testified to the conversation then had, and gave such evidence as to it, that the jury was entitled to find that the defendant then purchased some cresting from the plaintiff. There were many facts proved, tending to show that the plaintiff did not sell to the defendant, but to Chamberlain, and that the defendant only pointed out certain crestings as satisfactory to him, e.g. that the plaintiff knew that the contract was pending; that the original order upon the books of plaintiff was made by Chamberlain in his own name, and the transaction was thereafter entered in the name of Chamberlain ; that the price was fixed after a discount usually given by plaintiff to contractors like Chamberlain, but not to dealers like the defendant. The interview with the defendant was two or three days before the order was written in the plaintiff’s books. There was, on the other hand, some evidence given, tending to show that an arrangement liad been made by the defendant with Chamberlain, under which the former was to pay directly for materials put by the latter into the house, and the money paid was to be deducted from the' instalments under the contract.
    The action is brought for the price alleged to have been agreed to be paid by the defendant for the materials. The plaintiff had a verdict, and the defendant appeals.
    Arnoux, Ritch, & Woodford, attorneys, and Wm. Henry Arnoux, of counsel for appellant.
    
      Nelson Smith, attorney, and of counsel for respondent.
   By the Court.—Sedgwick, J.

I proceed to examine the exceptions argued by the learned counsel for appellant:

He urges that the judge erred when he charged that “if the defendant did or said anythingfrom which Mr. Fiske had a right to suppose that the sale was being made to Mm, and not upon Chamberlain’s responsibility he would be himself liable,” and the argument is tiiat if the defendant had gone so far, it would, not make him liable, unless, also, the plaintiff Fiske meant to sell to Allen. Of course the learned judge would not intentionally say anything which implied there could be a sale to the defendant, apart from the plaintiff’s participation in the contract for the sale. At the least, it is taken for granted through the charge, that there can not be a buyer unless there is also a seller. And the language of this part of the charge implies this, for Mr. Fiske- the plaintiff could under no circumstances have a right to suppose, from what the defendant said, that the sale was being made to-the defendant, when he knew that he had not done or said what was necessary to make him a party to the sale. The exception on this point should not be sustained.

An exception was taken to the plaintiff being; asked, 61 How the business of his store was done, from which it will appear3 how it came to be charged to-Chamberlain instead of Allen.” The answer to this question in connection with the question, informed the-jury that the entries in the various books after entry of the order was made in the order-book were taken from the order-book. This did not injure the defendant. His argument was as strong upon the fact of the order itself, and the jury should have known that the other entries were not original.

The defendant excepted to the admission by the court, of a question put to Chamberlain, viz. s 66Has the defendant ever paid you for the cresting?” I do not think this should canse a reversal of the judgment. The defendant had chosen on cross-examination of Chamberlain, to ask if he was not bound under the contract with the defendant to pat in this cresting or a cresting. The answer was yes. The existence of this-contract, and the obligation of the- parties under it, had in the course the case had taken become circumstances which the jury were at liberty to consider in ascertaining whether as a fact the defendant had bought of the plaintiff, although it was conceded by both parties that the existence of the contract was not inconsistent with the defendant’s making a purchase from the plaintiff. When the defendant had thus shown that apparently, so far as the evidence then disclosed, he was bound to pay Mr. Chamberlain, it was another circumstance of importance, greater or less, that the defendant had not paid his liability.

Finally, I think the learned counsel is in error in his arguments based upon the proposition that the ■entries in the books of the plaintiff, showing that the sale was in fact made to Chamberlain, were conclusive evidence that the sale was in fact so made. First. The transaction occurred several days before the entries were made, and the defendant’s obligation had, if at all, -come into existence before the entries. Second. The entry was made by Chamberlain himself, and there was no conclusive evidence that the plaintiff delivered the cresting upon that order, and not upon his dealings with the defendant personally.

The substance of the whole case was disposed of fully and fairly by the judge, who instructed the jury to ascertain the facts of the interview between the plaintiff and defendant, and gave them all the rules of law that should be applied to the facts.

Judgment affirmed, with costs.

Curtis, J., concurred.  