Fitch v. . Dederick

GRoveb J.

The evidence excepted to by the Defendant was inadmissible. It had no legitimate bearing upon any issue in the case. The issue was whether the Defendant, by any agreement or act of his, had become liable to the Plaintiffs for the price of the stone in question.

The fact that he had, before the delivery of the stone, loaned O’Donnell money, for which he was indebted to him at that time, had no tendency to show any agreement to pay for the stone, nor any liability therefor, upon any of the grounds claimed by the Plaintiffs. The learned Judge erred in charging the jury that, if O’Donnell agreed to pay for the stone in the notes of the Defendant, and the sale was made on the faith of receiving such notes, that would make the Defendant liable therefor. The charge assumes that the Plaintiffs sold the stone to O’Donnell, and that the latter agreed to pay the Plaintiffs therefor in the notes of the Defendant; and instructs the jury that if the Defendant knew that such an agreement was made, and the stone delivered by the Plaintiffs, upon the expectation of receiving such notes, the Defendant was liable therefor. This might all be true, and yet the Defendant may never have agreed with O’Donnell, or the Plaintiffs, to give his notes for any such purpose. Mere knowledge by the Defendant that O’Donnell had agreed with the Plaintiffs to give his notes in payment for property purchased by O’Donnell, imposed no liability upon the Defendant.

It is not necessary to examine the other portion of the charge excepted to. The order appealed from must be affirmed, and judgment rendered against the Plaintiff.

All concur.

Judgment absolute for Defendant.

JOEL TIFFANY, State Reporter.