
    Millard F. Powers and Others, Appellants, v. Andrew McLean, Respondent.
    
      Agency — holding out another as principal —• undisclosed principal.
    
    A person who originally was neither the actual principal nor the actual agent in a sale of goods may make himself liable as* principal by asserting his principalship and contracting, upon a good consideration, with regard to it.
    In an action brought to recover the price of goods sold, it appeared that in October, 1895, a person named Loisson took an order from the plaintiffs for mosquito netting. Thereafter the plaintiffs received a' bill of the goods, which read: “To Andrew McLean (the defendant), Dr., sole agent for mosquito net- . ting, manufactured by R. & H. Adams, Andrew McLean & Co,, James Thompson & Co.” There was stamped across the face of the bill, “Those goods shipped by R. & H. Adams; all orders to be sent direct to 16 Greene street, New York. Paid November 11, 1895,” and the further statement, “ Delivered by R. & H, Adams.” The plaintiffs made payment to the defendant Andrew McLean by a check payable to his order, and after he had objected to the check as too small, they sent to him an additional check for the difference. He had also sent to the plaintiffs, a few months before the sale, a postal card stating the price of mosquito netting.
    
      The plaintiffs knew that Loisson had formerly been employed by B. & H. Adams, but they supposed that after the year 1893 he had become a salesman for a combination in the mosquito netting- business composed of B. & H. Adams, Andrew McLean & Co. and James Thompson & Co. Loisson never notified the plaintiffs that he had booked the goods with B1 & H. Adams, nor did that firm ever come forward as principals in the matter, or notify the plaintiffs that they had contracted with Loisson. In fact, Loisson transmitted the order to B. & H. Adams, who received and accepted the order from him; but the bill for the goods was sent and payment was made as described above. The defendant was the supervisor of the mosquito netting combination, controlled the market, entered all sales in a special ledger, received payment from debtors, and paid over what he received, less two per cent retained by him for “handling the accounts,” to the proper member of the combination. He paid over to.B. &H. Adams what he received from the plaintiffs, less two per cent, and that firm credited the plaintiffs only with the amount which they had received from the defendant. The firm of B. & H. Adams failed in March, 1896, and the plaintiffs sought to hold the defendant Andrew McLean as principal.
    
      Sold, that as the defendant authorized B. & H. Adams to send out bills in his name as principal, he thereby permitted them to hold him out as such, .and that B. & H. Adams thereby also disavowed that they themselves were principals;
    That the defendant was liable as principal- upon a completed contract, and that this was entirely unaffected by the arrangement which Loisson had previously made with B. & H. Adams, but of which the plaintiffs were in entire ignorance. Bumsey and Patterson, JJ., dissented.
    Appeal by the plaintiffs, Millard F. Powers and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of July, 1896, upon the report of a referee dismissing their complaint.
    The action was brought to recover damages because of the nondelivery of goods sold to, and paid for by, the plaintiffs.
    The plaintiffs ordered fifty bales of mosquito netting through one Loisson, in October, 1895. Their letter to Loisson reads as follows:
    “Cleveland, Ohio, October 29/95. “L. C. Loisson, Great Northern Hotel, Chicago, 111.:
    “.Dear Sir.—• Kindly book us for 7/4 Adams mosquito netting-bar, as follows: Prices and terms to be in accordance with your letter of recent date; 20 bales white, 12 bales green, 6 black, 3 blue, 5 pink, 3 plain cardinal, 1 brown, and oblige,
    “ Very truly yours,
    ' “ WM. TAYLOR’S SON & CO.,
    “ Per Harvey.”
    
      After sending this letter they received a bill for the goods, which reads as follows : '
    “ New York, Nov. 1, 1895.
    “ M. ¥m. Taylor, Son & Co., Cleveland, O.:
    
      “ To Andrew McLean,. Dr.
    
    “ Sole Agent for Mosquito Netting, Manufactured by “ R. & H. Adams, Andrew McLean & Co., James Thompson & Co. “Terms: 6/10 or 5/30, as April 1st, ’96.
    “ Terms : ........................... 46, 48 & 50 Wooster street.
    “ Rate for anticipation, at 2/! per month.............. $5, 036 :25
    2789/2808 5,600 pcs. 20 bales, 7/4 white .. 32.2.. $1, 820 2809/2820 3,360 “ 12 CÍ green... 35 .. 1,176 2821/2826 1,680 “ 6 (( black .. 35 .. 588' 2827/2829 840 “ 3 « blue ... .35 .. 294 2830/2834 1,400 “ 5 pink ... 37.2.. 525 2835/2837 840 “ 3 C( • 1/4 pi. cardl. 37.2.: 315 2838 280 “ 1 u brown . 35 .. 98
    10 %
    
    $4,816 481 :60
    $4, 334 40
    Stamped across the face : ======
    “ These goods shipped by R. & H. Adams; all orders to be sent direct to 16 Greene St., New York. Paid Nov. 11, 1895.
    “ Terms : .... \
    
    “Dep’t. .Date.....i O. K. M. R. S.'
    “ Dep’t... ) Delivered by R. & H. Adams.
    “ Ex’d W. D. S. Price O. K. M. R. S.
    ■ “ Ent’d H. É. W. Chk’d P. W. H.
    “ Arrived ........”
    The plaintiffs■ thereupon sent to the defendant in payment a check-made out to his order, which was indorsed and deposited to the credit of his firm. The plaintiffs thereafter, received a telegram, signed by the defendant, which reads as .follows :
    “ To W. Taylor, Son & Co.:
    “ Owing to deduction sixteen per Cent, instead of ten and six, your check is twenty-six dollars short; shall we return check ?
    “ANDREW McLEAN.”'
    
      Thereupon they remitted another check to the defendant for the balance of twenty-six dollars, which was deposited in the same manner. It appeared that Loisson was a traveling salesman in the employ of R. & H. Adams, having no authority to sell the goods of the defendant or his firm; that he transmitted the order to R. & H. Adams; that R. & H. Adams received and accepted the order; that the; defendant never sold the goods of R. & H. Adams or James Thompson & Co., but only those of his own firm, Andrew McLean & Co.; that the other two firms themselves made out and sent the bills for their own goods which were sold (in the defendant’s name, however), and sent duplicates to the defendant; that the bill in this case was, in accordance with this course of business, made out and sent by R. & 'H. Adams; that the defendant collected the money for such bills and paid over the same, deducting a commission of two per cent, to the firms owning and delivering the goods; and that lie.did so here, remitting to R. & H. Adams ninety-eight per cent of the amounts collected from the plaintiffs. It also appeared that Loisson never told the plaintiffs where he had booked their order, nor did R. & H. Adams tell them that they had accepted Loisson’s order.
    The plaintiffs knew nothing whatever as to what Loisson had done, except the notice conveyed by the receipt of McLean’s bill. It also appeared that the plaintiffs had had similar dealings upon prior occasions, and that upon such dealings they had received and paid similar bills. It also appeared that McLean had previously notified them as. to the price of mosquito netting. A postal card was put in evidence, which reads as follows :
    “ New York, May 21st, 1895.
    “ Owing to the scarcity and large demand mosquito nettings have advanced in price 2^- cents a piece.
    “ANDREW MoLEAN,
    “ Agent.”
    
    (Addressed on face of postal card):
    “W. Taylor Sor & Go.,
    
    “ Cleveland,
    “ Ohio.”
    The plaintiffs claim that McLean is directly liable to them as principal. He claims that he is not liable, for the reason that the plaintiffs dealt directly with R. & H. Adams, and that he was merely an agent to collect the bill.
    Other facts are stated in the opinion.
    
      Pobert L. Harrison and Alfred H. Byrd, for the appellants.
    
      John E. Parsons, for the respondent.
   Barrett, J. :

The question here of the defendant’s liability is not a question of fact pure and simple. . It is rather a question as to the legal conclusion which should follow the inferences properly deducible from certain undisputed facts. It is quite true that the plaintiffs made no direct personal contract with the defendant for the purchase of the goods in question. They never in fact saw the defendant upon the subject of the sale. But it is equally true that they made no direct, personal contract with R. & H. Adams. They never saw any member of that firm upon this same subject. What is certain, however, is that they paid their money to the defendant for the goods in question. They paid it to him as the apparent principal in the transaction, not as the apparent agent for any one. Did he, in return for that money, correspondingly agree,- by fair implication, to deliver the goods to the plaintiffs ? That is the real question. The defendant admits that he received the money., but denies the corresponding agreement. He asserts, on the contrary, that it was not he, but the firm of R. & H. Adams, who agreed to deliver the goods. Undoubtedly, the firm of R. & H. Adams did so agree. That is, they so agreed with Loisson, who was acting under the plaintiffs’ instructions. But did the defendant as well so agree? If he did, the possible liability of R. & H. Adams as undisclosed principals cannot save him. The principal and the agent may both be liable. So may the principal and even a collateral contractor. The purchaser may hold the agent for failure to disclose his principal, or he may hold the principal when disclosed, or he -may, in either event, hold the collateral contractor, if the latter has made a distinct independent contract. Here it will be observed that the plaintiffs had no other knowledge of the real principal save that conveyed by the bill rendered. The only person whom they knew in the transaction prior to the receipt of this bill was Loisson. They had simply asked Loisson to “ book ” the goods for them. Loisson was an employee of R. & H. Adams, and he booked the goods with that firm. Bnt of this latter fact the plaintiffs were not aware. They knew, however, that Loisson had formerly been in the employ of R. & H. Adams, but, after the year 1893, they always supposed, that he had become a salesman for what Mr. Swift describes as a, “ trust ” or combination ” composed of three firms, viz., R. & H. Adams, Andrew McLean & Co. and Jarnés Thompson & Co. Mi'. Swift testified that he did not think his firm (the plaintiffs) bought any mosquito netting through Loisson after the year 1893, “ except through the combination.” Be that as it may, Loisson was authorized to book the goods wherever he deemed best. He never notified the plaintiffs that he had booked the goods with R. & H. Adams, •nor did that firm ever come forward as principals in the matter, or notify the plaintiffs that they had contracted with Loisson. On the contrary, they sent the plaintiffs a bill which plainly disavowed their own principalship and notified the plaintiffs of the defendant’s, principalship. All the plaintiffs knew, from the beginning to the-end, was that they had authorized Loisson, acting as a salesman for-the trust or combination, to book the goods wherever he pleased, and. that, as a direct and immediate consequence, the defendant came: forward as principal and demanded the money for the goods. What, did this convey to the plaintiffs ? Plainly the implication that Lois-son had booked. the goods with the defendant. And this implication— that the goods had been booked with the defendant—also-attaches to R. & H. Adams, who sent the bill, as well as to the. defendant, who authorized it to be so sent. The bill thus rendered, was a direct assertion that the price was due to the defendant personally, and to no one else. That assertion surely involved, by fair-implication, a corresponding obligation to deliver the property. It. was as the maker of this assertion, with the corresponding obligation fairly implied, that the defendant accepted payment. This bill was, issued and sent to the plaintiffs with the defendant’s full and unqualified approval. It was not an isolated transaction, nor was it: the result of mistake or inadvertence. It was part of a deliberately-planned method of transacting business. And the bill followed the. regular custom of that business. It will also be observed that the. bill disclosed no principal other than the defendant. The plaintiffs were not told thereby that the defendant was acting as agent for the firms named therein. On the contrary, the bill was made, out to the defendant personally — that is, in terms, it reads “ to Andrew •McLean, Dr.” • After this the vendee is informed that Andrew McLean is the sole agent — not for the three firms, but for mosquito netting manufactured by the three firms. In other words, the vendee is informed of Mr. McLean’s general line of business. The personal character of the bill, and of the contract impliable therefrom, is not varied hy the notice stamped thereon that the goods. are shipped by one of the three firms. It was immaterial who was to ship them, or who then owned them, or who had them. The " defendant agreed,, for the price paidliim, to deliver them. That is what the bill conveyed; that, and nothing else. But even if the plaintiffs had been informed that the bill was sent hy R. & H. Adams, that would simply have been notice* of that, firm’s avowal of the defendant’s principalship, and disavowal of their own. It would have been equivalent to their saying: Loisson booked your order with us, but We have arranged to place it with Andrew McLean. Under our arrangements with'" him, however, we will deliver the goods to you upon your order. But it will be delivery upon his ■ account, and he will look to you, as Ms vendees, for payment. And that idea the plaintiffs ratified, by accepting the .bill in McLean’s name and. paying it accordingly.

The learned referee proceeded upon an erroneous view of the law when he suggested that, if the plaintiffs did not know who the principals were, and had desired to he informed upon that subject, they could easily have obtained that information. The rule is the other way. It was: held in Cobb v. Knapp (71 N. Y. 348) that “.it is not-sufficient that the seller may have the means of ascertaining the name of the principal. * * * He must have actual knowledge.

There is no hardship in the rule of liability against agents. They always have ilt in their own power to relieve themselves, and when they do not, it ■ must be presumed that they intend to be liable.” The defendant’s private arrangements with R. .& H. Adams are quite unimportant. The one crucial fact is that when he authorized them to send out bills in his name as principal he jjermitted them to hold him out as such principal. The other crucial fact is that when under that authority R. &.H. Adams sent out bills in the defendant’s name they disavowed them own- principalship and proclaimed his. And there is not a scintilla of evidence that the plaintiffs knew that the defendant was a mere collecting agent, nor is there a fact or circumstance in the case from which they could possibly have inferred any such agency. It would indeed have been an extraordinary and most unusual thing to constitute a man one’s mere collecting agent and yet to have all one’s bills made out in that agent’s name as principal. Everything in the case negatived any such inference. Thus we find that this defendant acted throughout apparently as principal in this and in all other transactions. For instance, when he found that the plaintiffs had accidentally underpaid him by a few dollars he telegraphed them at once in his individual name, and thereupon they sent him a check for the Small balance, which he also retained. He seems also to have had entire control of the market, for he repeatedly sent out notices with regard to the prices of. this particular commodity. The fact is that ' there'was, as Mr. Swift understood, a combination of manufacturers of mosquito netting composed, of the three firms, and that this combination was represented by the defendant. The defendant acted apparently as supervisor or regulator of this combination. Its object, it may fairly be inferred from the proofs, was to avoid competition between the members thereof. One of the defendant’s employees testified that all the goods billed in November, 1895, were, he thought, on the same terms! He could not explain how it happened that the terms of the three concerns were identical, but he believed that the goods were to be sold at the same price. The price of the commodity was fixed to equalize the charges of the three firms. It was undoubtedly to insure accuracy and good faith in this equalization that all the bills were vised by the defendant and collected by him. He entered them upon a special ledger, received payment from the debtors and paid over what he received (less two per cent retained for “ handling the accounts ”) to the proper member of the combination. When debtors were remiss in their payments he sent out regular monthly statements, such as are commonly sent out by mercantile houses.” In the. case under consideration he paid over to R. & H: Adams what he received from the plaintiffs, less two per cent, but that firm credited the plaintiffs only with -what they so received from the defendant. Thus R. & H. Adams failed to give the plaintiffs credit for the real price of goods and substantially charged them with the defendant’s commission. This certainly looks like mere nominal! bookkeeping. It points, at all events, to no contract between them and the plaintiffs to deliver the goods for the price specified in McLean’s bill. The defendant, however, gave tlie plaintiffs credit ■ upon his special ledger for the full price of the goods, just as he did upon a prior occasion when his receipt specified that the check then given to him was in payment of his bill of June 6, 1895.

If this case depended solely upon the law of agency, the rules applicable thereto would not be questioned. No one doubts, for instance,. that an agent who holds himself out as principal is liable as such. The agent is personally liable if he contracted in his own name without disclosing his principal, (Cobb v. Knapp, supra.) Nor is the agent absolved by reason of the fact that lie had no beneficial interest in the contract. It was held in Ferris v. Kilmer (48 N. Y. 300) that one who authorizes another to use his name 'in the conducting, and carrying on of a business is liable for the debts incurred in such business although he has no beneficial interest 'therein. . Even where the vendor, or purchaser discloses the name of his principal, if he signs a written contract in his own name merely, which contract does not on its face show that he was acting as the agent of another, he will be personally bound thereby. (Mills v. Hunt, 20 Wend. 431.) Magee v. Atkinson (2 M. & W. 440) was there cited with approval, the court saying that that was a case “ where the broker had sent in a note of the sale to the purchaser in his own name,” and that “ it was held that evidence of a custom in Liverpool to send in brokers’ notes without disclosing the name of the principal could not be received for the purpose of protecting the broker from personal liability.”

These cases differ from the present in the fact .that there the agency was in the negotiations for the sale, while here it arose sub- ' sequen'tly. They are not, therefore, literally in point, but the principle enunciated covers the peculiar divergence in the case at ban But, even if one, as matter of fact, is originally neither the actual principal nor the actual agent; he may make himself liable as . principal by asserting his principalship and contracting with regard thereto upon a good consideration. Our. conclusion upon the undisputed facts here is that the defendant, in consideration of the sum which he received from the plaintiffs, impliedly agreed to deliver to them the goods, specified in the bill which he authorized to be rendered in his individual name. As between the plaintiffs and the defendant, the money in question was not paid to the latter as the agent of R. & H. Adams, but was paid to the defendant personally as demanded, pursuant to his authority. Upon that payment a corresponding obligation arose on the defendant’s part to deliver the goods upon the plaintiffs’ demand. The contract between these parties was thus completed, and that contract was entirely unaffected by the arrangement which Loisson had previously made with R. & H. Adams, of which the plaintiffs were in entire ignorance. And it would, as we have seen, have been entirely unaffected by that arrangement, even though the plaintiffs had been notified that the bill which was rendered had emanated from R. & H. Adams.

There is nothing in the point that the proofs failed to substantiate the allegations of the plaintiffs’ complaint. They did substantiate these allegations, that is, they established the essential facts. It would have been bad .pleading to .aver the evidence of these facts. Here the plaintiffs averred that they purchased from the defendant, and the defendant sold to them, the goods in question. They substantiated this averment when they proved an agreement on the defendant’s part to deliver the goods to them in consideration of the purchase price. In. legal intendment that established a contract of sale.

The judgment should be reversed and a new trial ordered before a new referee to be appointed in the order entered hereon, with costs to the appellant to abide event.

Tan Brunt, P. J., and Williams, J.,. concurred; Rumsey and Patterson, JJ., dissented.

Rumsey, J. (dissenting):

The sole question in this case is one of fact. It is whether the goods which were sold by Loisson to the plaintiffs in Kovember, 1895, were sold by the .firm of R. & H. Adams, or were sold by the defendant McLean. The plaintiffs alleged that they bought the goods of McLean and paid for them, and he did not deliver them, and they asked damages- of him for his failure to deliver them. He denied that the sale was made by him.. This was the issue, and the plaintiffs were bound to prove by a preponderance of the evidence that the goods were bought of '3IcLean as. they alleged. The referee having, upon conflicting • evidence, found for the defendant upon the ground that the . goods were bought of R. & II. Adams and not of the defendant, the presumption is that that finding is correct, and the question is- whether there was sufficient evidence to warrant the referee in making .that finding,

■ The facts are substantially not disputed. It appears from the testimony of Mn Swift, one of the plaintiffs, that they were in business in Cleveland, Ohio; that they knew L. C. Loisson and that he had been for several years a salesman for the firm of R. & H. Adams, and that they knew it, and they had no knowledge or reason to believe that he was employed for anybody, else. As a matter of fact, it appears and is, not disputed in the case, that,Lois-son, during the .month of November, 1895, and before that, was a salesman for R. & H. Adams, and was not and never had been in the employ of McLean. In the prosecution of his business., Loisson wrote from Chicago to the plaintiffs, to Cleveland, proposing to sell them mosquito netting. That letter the plaintiffs did not produce. Blit- in reply to it, on the twenty-ninth of October, they -wrote to Loisson a letter which is'printed as an-exhibit, ordering the mosquito netting, the sale of which - is the subject of this action.- That order was sent by Loisson to R. & H. AdamSj by whom he was. employed, and was accepted by them and the order was entered on their books. By the "custom of business in the sale of mosquito netting, the bills are. sent as of the. first of April, and á discount is. made from the amount of it of six per cent if the bill is paid in ten days, or five per cent if the bill is paid in. thirty days, and a f urther discount of two per cent to the buyer for each month that elapses between the date of .payment for. the goods and the first of April. This custom of trade'apparently was known to the plaintiffs and. they desired tp take advantage of it.

Hp to this time the defendant McLean had not appeared at all in the transaction!, and nothing was known of him by the plaintiffs so-far as has been made to appear. > Indeed, at that time they seem to have been ignorant of his existence. H the transaction had stopped there, there can he no doubt that the only parties to it would have been the plaintiffs on the one hand and the firm of R..& H. Adams, as sellers, on the other. On the first day of November, however, the bill for these goods was sent to the plaintiffs by the firm of R. & H. Adams. This is an undisputed fact in the case. The heading of the bill as sent was as follows : “ M. Wm. Taylor, Son & Co., Cleveland, 0., to Andrew McLean, Dr.” Then follow certain statements which are not material here. The bill was for the amount of the goods sold pursuant to Loisson’s order by R. & EL Adams. Across the face of the bill was a statement: “These goods shipped by R. & H. Adams. All orders to be sent direct to 16 Greene St., New York.” And another statement: “Delivered by R. & .EL Adams.”

A duplicate of the bill was sent to McLean, and the plaintiffs shortly after having received it sent, to McLean the amount which, according to their figures, was the' amount due on the bill, deducting the percentage and the discount for anticipation. McLean claimed that the discount was not correctly figured, and sent to the plaintiffs a telegram to that effect, signed by himself personally, asking for twenty-six dollars more, which they remitted to .him. These two checks were deposited by McLean to the credit of. his company, but, as was testified by several persons, and was not denied, were paid over to the firm of R. & H. Adams, after deducting his commissions for collection.

It was proven in the ease by several witnesses that' McLean had a contract with the firm of R. & H. Adams and other firms engaged ■ in the sale of mosquito nettings, by which he was to collect the bills for two per cent commission, and remit the proceeds, less his commissions, to the persons who sold the goods. This was not denied by anybody and there is no reason to doubt its truth.

It appears as an undisputed fact in the case that in the month of March the firm of R. & H. Adams failed. Upon learning of it Mr. Swift, one of the plaintiffs, immediately went to New York and went to. the place of business of R. & li. Adams to make inquiries about these goods. From there he went to McLean and had an interview with him, and after that this action was brought. What occurred in his interview with McLean has not been made to appear in the testimony. Mr. Swift does not claim that' even at that time he advised McLean that he claimed to have purchased the goods of him, or that he made any demand upon him for them. This is substantially all the testimony bearing upon the question of the sale of these goods. Upon this testimony it is not apparent how the referee could have reached any different conclusion from the one he did reach.

When the bill was sent, the transaction was complete. The plaintiffs had dealt with the agent of R. & H. Adams, believing him to be such; had ordered the goods from him ; the order had been remitted to his principals, and they had accepted it. That clearly'made .a contract between them and the Adamses. It is. quite true that the.bill was sent in the name of McLean, but this was done by the Adamses, and it was done for the purpose of enabling him to make the collections. If there had been no explanation of that fact, it would not have made him the seller of the goods which Adams had previously agreed to sell, and it was quite clear that he was not so regarded by the plaintiffs, because Mr. Swift says that when he wanted a delivery of the goods, after the failure of the Adamses, he went directly to their place of business to get it. There is not one word of testimony to contradict the statement that McLean was simply the agent to make these collections, nor is there anything to show that the plaintiffs believed, or had reason to believe, anything different. The evidence is overwhelming to sustain the referee in his findings of fact. The relation of McLean to this whole transaction is a natural one; it is undisputed; McLean was never relied upon by the plaintiffs as the seller of these goods; they did not, so far as appears, know of his existence until the bill was sent, and even then they did not look to him to deliver them.

' But it is said that the contract with the Adamses was transferred to McLean, and assumed by him when the bill was sent in his name, and the money received by hiuj. To this theory there are two.insuperable objections. - In the first place, no' such claim was ever made by the plaintiffs, either before the action was begun, or in the pleadings or upon the trial. It is rather a remarkable fact that the plaintiffs’ witness Swift carefully forbore to say what claim he made on McLean when he visited Mew York to get the delivery of the goods from the Adamses, just as he carefully forbore to say what was contained in the letter which lie, so fortunately for the plaintiffs, destroyed, and in which Loisson offered the goods to him. It certainly cannot be presumed when he talked to McLean that he asserted that McLean had become liable upon the contract, and the absence of any such assertion at any time is a very important piece of testimony as contradicting the fact that such liability ever was deemed to have existed. It certainly could not grow, as a matter of law, out of the relations between McLean and the Adamses, because the undisputed fact shows that that was only the relation of collector for pay, and that he paid to the Adamses the' money he received from the plaintiffs. It could come to exist, if at all, only by virtue of an express contract between the plaintiffs and McLean, by which McLean assumed or became liable for the contract of the Adamses. But no evidence was given to establish such a contract. ^Neither is any such contract alleged in the complaint. The plaintiffs stand solely upon the assertion that McLean sold the goods to them as an original proposition, which is utterly false,' and without one particle of evidence to sustain it.

Upon the evidence, and upon the pleadings, the referee could not find any differently from what he did, and the judgment entered upon his report should be affirmed.

Patterson, J., concurred.

Judgment reversed, with costs to appellant to abide event, and new trial ordered before another referee to be appointed on entry of order hereon.  