Neill v. Hunter ( 1910 )

Opinion by

Henderson, J.,

The question at issue as exhibited by the record brought up was one of fact. If the lumber received by the defendant was that ordered by him through V. McDonald on April 17, 1907, the verdict should have been for the plaintiffs. If on the other hand the lumber was delivered pursuant to the order given November 8, 1906, and the payments were made to McDonald, as claimed by the defendant, the verdict was rightly rendered. There was no contradiction of the defendant’s testimony, that when he gave the order of November 8 to McDonald the latter represented that he was acting for himself in selling the lumber and that the defendant so understood McDonald’s position. On such a state of facts the payments in advance by the defendant to McDonald were a good credit on the bill for the lumber when it was delivered; but if the account sued for was the price of lumber delivered under the order of April 17, 1907, the defendant could not claim credit for such payments. The jury was instructed to this effect in a clear and correct charge. The jury evidently found that the lumber was delivered on the order of November 8, and that there was no partnership at that time between the defendant and Y. McDonald. A verdict for the defendant would necessarily follow from such finding. If the plaintiffs took a transfer from V. McDonald of an order for lumber given to him by the defendant they assumed the risk that McDonald had been paid in advance. We find nothing in the assignments of error which would justify a reversal of the judgment.

It is therefore affirmed.