Emerson v. Patch

In an action on an account annexed for wood sold to A., the report of an auditor stated that the plaintiff sold the wood in question to B., who was then engaged in manufacturing bricks for A. under a written agreement, by which A. was to furnish all necessary materials for making the bricks, except the clay; that the wood was delivered at the brick-yard, occupied by B., and there used by him in making the bricks for A.; that A. frequently visited the yard while the wood was being so used, and in fact sold a part of the bricks after they had been manufactured; that the plaintiff, at the time of the sale to B., was ignorant of the agreement between A. and B., and of the fact that any person except B. had an interest in the business, and was first informed of it within a week before suit was brought; that, in the meantime, A. and B. had made a final settlement of their accounts, in which A. gave up to B. certain promissory notes held against him, and B. released to A, his claim for making the bricks, and executed to him a receipted bill for the wood, which was dated prior to the time of settlement; and found for the plaintiff. The judge ruled that, on these facts, the auditor was not justified in finding for the plaintiff, and ordered a verdict for the defendant. Held, that the ruling was erroneous, and that the evidence should have been submitted to the jury.

Contract, on an account annexed, for wood sold and delivered to Charles Dustin, the defendant’s testator. At the trial in the Superior Court, before Grardner, J., the plaintiff put in evidence the report of an auditor in his favor, and rested his case. The report of the auditor stated that the plaintiff sold the wood, charged in the account annexed, to Edward Foye, who was then engaged in manufacturing bricks for Dustin, under a written agreement, by the terms of which Dustin agreed to furnish all necessary materials for making the bricks, except the clay; that the number of cords and the price were agreed on by the plaintiff and Foye, and the wood was delivered at the brick-yard occupied by Foye, and was there used by him in burning the bricks made, by him for Dustin under the agreement; that Dustin, during the progress of making the bricks, was frequently at the brick-yard, and observed what was being done, and, after the burning was finished, sold a part of the bricks; a part was sold by Foye, and the remainder, after the death of Dustin, were taken and sold by the defendant; that, at the time of the sale and delivery of the wood in question, the plaintiff was not informed of the agreement between Dustin and Foye, and had no knowledge that Dustin or any other person had any interest or responsibility in or about the business except Foye, and his first information upon that subject was within one week before the commencement of this action, when he learned of the existence of the written agreement between Dustin and Foye; that in the meantime, on November 12, 1874, Dustin and Foye made a settlement of their accounts, in which Dustin released and gave up to Foye certain promissory notes which he held against him, and Foye released to Dustin his claim for making the bricks, and also executed to Dustin a bill receipted for the wood in question or the larger portion of it, (dated October 27, 1874,) and made a final adjustment of their account of the business of manufacturing the bricks; and upon these facts found that the plaintiff was entitled to recover- for the price of the wood so sold and delivered to Foye, and stated the account. The defendant offered no evidence, but contended that the findings of the auditor were not justified by the facts reported by him. The plaintiff contended that he was entitled to a verdict. The judge ruled that, on the facts and evidence reported by the auditor, with all such inferences as he might legally draw from the same, the auditor was not justified in finding for the plaintiff, and ordered a verdict for the defendant. The plaintiff alleged exceptions.