McClenny v. Hubbard

20 Fla. 541 | Fla. | 1884

The Chief-Justice delivered the opinion of the court.

The only question in this case is as to the sufficiency of the testimony to charge defendant with the goods ordered by the Merrills. The Merrills, father and son, testify that defendant said he did not want to have dealings with Hub-hard, but told them to get things where they could be got the cheapest and he would pay the bill. McClenny denies the testimony of both on this subject, and says he told them he would pay no bill at Hubbard’s, but that he would pay for materials for building his mill which they should purchase at another store. The goods, except about $10 worth, delivered to the Merrills in. person were shipped by Hubbard to McOlenny’s address, by rail at the place where the Merrills were at work building the mill, and where McClenny had a brother superintending his business. The goods so addressed were put into the rmll in its construction, as were the articles delivered at the store to the Merrills. Bills were mailed to McClenny’s address at the times, of shipment,-made out against McClenny “ by Merrill.” One of these bills was received by defendant, as he himself testifies, “ very soon after Merrill commenced operations on the mill.” Yet with this notice that Hubbard was sending goods addressed to him for his mill, ordered by Merrill, the account being charged against McClenny, he merely sends the bill to Merrill and gave Hubbard no notice that Merrill was not authorized to order the goods. Defendant was at the mill two or three .times a week, at least, while the work was going on, and his brother, his agent, was there all the time, receiving the goods addressed to defendant, not to Merrill, and they were used in the construction of defendant’s mill. These circumstances strengthen the testimony of the Merrills that defendant was to pay for goods ordered by them for the mill. Though it may be true that by the contract with W. G. Merrill the latter was to furnish the articles, yet the defendant says he authorized the purchase from another party, by Merrill, on his account and paid the bills. Having notice that Merrill was purchasing in his name from Hubbard also, it was his 'own fault if he overpaid Merrill. But both the Merrills testify that defendant authorized them to buy where they could get goods cheapest and he would pay the bills. They also both testify that the original contract for building the mill was abandoned by both W. G. Merrill and defendant at the instance of defendant.

Taking the testimony altogether we think a jury would not hesitate to hold the defendant liable unless there was something in the manner of the witnesses for plaintiff in the giving of their testimony to discredit them. Nothing •of the kind appears in this record. The referee having the witnesses before him was well qualified to judge of their credibility, and the same weight should be given to his finding of facts as would be accorded to the judgment of a jury. Vansteenburg vs. Hoffman, 15 Barb., 28: Wooden vs. Foster, 16 Barb., 146; Sinclair vs. Tallmadge, 85 Barb., 602.

Again, if defendant did not expect to pay the bills contracted with Hubbard, but Merrill was to pay them, we can conceive no good reason why defendant should concern himself with or object to Merrill buying of Hubbard, or otherwise interfere, if the goods were suitable and could be bought “ cheaper” than elsewhere.

We find no error in the finding of the referee, and the judgment is affirmed.