MERWIN, J.
In the complaint it is alleged that the ties were sold and delivered at an agreed price. Ho agreement as to price is found, but the value is found, and judgment for that is ordered. The appellant claims that under the complaint a judgment for the value is not warranted. In Taylor v. Pinckney, 3 N. Y. St. Rep. 158, 12 Civil Proc. R. 107, it was held that one may declare on a special contract, and, failing to prove such, may recover on a quantum meruit. In Sussdorff v. Schmidt, 55 N. Y. 320, it was held that, under a complaint to recover an alleged agreed compensation for services, a recovery upon proof of and for the value of the services is sustainable; that, at most, it is but a variance between the pleadings and the proof, which may be disregarded, unless it appear that it misled the defendant. See, also, Smith v. Lippincott, 49 Barb. 398. In the present case the defendant’s rights were fully protected, as, in view of the evidence of value, it was allowed to amend the answer, and the subject was fully considered in the evidence. The rule, therefore, laid down in Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. 698, and invoked by the defendant, would not apply. In fact, there was no dispute as to the value, and the defendant admitted receiving, accepting, and using the ties. It was found, on sufficient evidence, that the plaintiff owned them, and delivered them, as his own, to the defendant, and that defendant knew of such delivery. It is quite clear that the judgment for the value was authorized by the pleadings and proof.
A more serious question is presented by the claim of the defendant that it was entitled to have the referee pass upon the question of the existence of a verbal agreement, as referred to by the referee in his first finding of law. The response of the referee to the defendant’s request, which apparently covered the subject, was “Hot found.” This, ordinarily, would be deemed sufficient in form to indicate that the request was passed upon. Davis v, Leopold, 87 N. Y. 621. It is, however,. argued that the statement in the first finding of law indicates that it was not, and that the rule that, in case of inconsistent findings of fact, the defeated party is entitled to the benefit of those most favorable (Schwinger v. Raymond, 83 N. Y. 192) should apply. Assume this to be so. The question is whether a finding that in or about June, 1889, there was a verbal agreement between the plaintiff and Wheeler, by which the plaintiff authorized Wheeler to sell the said ties to the defendant, and receive the avails thereof, and apply the same in payment for certain timber and ties cut by plaintiff on Wheeler’s lands, would help the defendant, in view Of the other facts as found, *271or that the evidence authorizes to be found. At the time of such agreement, there was nothing paid, and no part of the property was delivered. The agreement to apply the proceeds on a prior debt was not a payment, within the statute. Walrath v. Richie, 5 Lans. 362; Brabin v. Hyde, 32 N. Y. 519. Wheeler, therefore, had no valid interest in the property itself by reason of the claimed verbal agreement. He claims that he afterwards, in pursuance of this agreement, made a sale to the defendant. It was, however, verbal, and nothing then paid or delivered; so that no valid contract of sale was made by Wheeler, assuming he did have authority from plaintiff. The only delivery was afterwards, and by the plaintiff, and it is found that his delivery was not in pursuance of any bargain that Wheeler had made. There is evidence that, subsequent to the delivery by plaintiff, the defendant paid Wheeler for the property. This is sought to be justified upon the theory that if the agreement was made between plaintiff and Wheeler, as suggested, it was an authority to Wheeler to receive the proceeds, which would operate to protect the defendant, although there was no valid contract of sale between defendant and Wheeler. In the negotiations between Wheeler and Mr. Draper, the purchasing agent of defendant, Wheeler claimed to own the ties. He was not dealt with as being the agent of plaintiff. The plaintiff delivered the ties under the direction of the engineer of defendant, who, however, was not authorized to purchase. It was his duty to inspect, and the return which he made to the defendant of his counting and inspection was in the form of a bill or account in favor of plaintiff against defendant, in which was stated the quantity and kind of ties, the date and place of delivery, and the price and aggregate amount. Under this account, the engineer certified that the ties included in the account were delivered at the place stated, had been inspected and measured by him, and that the quantity and price were correctly stated. Draper, on receiving this return, erased the name of plaintiff, and inserted the name of Wheeler, thereby changing the account from one in favor of plaintiff to one in favor of Wheeler. After this, the defendant used the ties, and paid Wheeler. Ho notice of the change in the account was given to plaintiff, and no information of the intended payment to Wheeler. The defendant had notice that the plaintiff delivered the ties and claimed to own them. Its agent had no right to change the account. It was not bound to accept the ties as delivered by plaintiff, but, if it did, it could not repudiate the claim of plaintiff, without notice to him, and without any inquiry as to his rights. There is no evidence that defendant’s agent made any inquiry about plaintiff’s rights, and he does not testify that he relied on any supposed agency of Wheeler, or that he was not fully acquainted with plaintiff’s claims. The verbal agreement, if made, would not help the defendant, unless there was a delivery in pursuance of it; and, as this did not occur, it was not material in the case. The referee, in effect, finds that the defendant had notice that the plaintiff repudiated any such agreement, if one was made. The evidence authorizes this conclusion. It follows that the defendant is not in*272jured by any refusal of the referee to pass upon the question whether such an agreement was made. There is no other question that calls for special consideration. The judgment should be affirmed.
Judgment affirmed, with costs. All concur.