| Minn. | May 8, 1889
This action is for the recovery of the value of a quantity of brick, alleged .in the complaint to have been sold by the plaintiff to the defendant. The answer denied the sale. It appeared upon the trial that the plaintiff sold and delivered the brick to one Anderberg, who commenced using them in the construction of a building upon land which this defendant, Dean, had contracted to sell to an association of persons with whom Anderberg was connected. It appears that the contract for the sale of the land was afterwards rescinded. Dean resumed possession of the land, and used the brick, or some part of them, in the further work of constructing the building, having agreed with Anderberg, as the evidence tended to show, that he (Dean) would pay Benson for them. The testimony on the part of the defendant denied this agreement.
The court submitted the case to the jury upon the theory that if Dean, in consideration of being allowed by Anderberg to use the brick, promised the latter to pay Benson for them, Benson should recover in this action. The jury were so instructed, and they were also instructed that that was the only question in the case. The defendant excepted to this. From the course pursued at the trial the defendant cannot be deemed to have consented to a trial of the case upon
Order reversed.
G-ilfillan, C. J., took no part in the decision of this case.