Turton v. Burke

By the Court, Whitoít, O. J. We think that the instructions given by the court to the jury, were correct. The instructions were, in substance, that the question for the jury to consider, was, whether the credit was given to Murray or not. If it was, then the order signed by the defendant for the castings, would not make him liable, for the reason that it was not such a writing as was required in order to make him liable for the debt of another. [121] These instrnotions were undoubtedly correct. If the castings were in fact sold to Murray, and the .credit given to him, the defendant, Burke, could not be made liable by reason of the paper which he gave, as it contained no promise, to answer for the debt of Murray, nor did it express any consideration. Rev. Stats, chap. 76, § 2. But we think that the judge excluded' testimony which if it. had been received, would have tended strongly to show that the castings were in fact sold to Burke, and not to Murray. The witness Boughton testified that he obtained the castings upon the order which was given by Burke, and kept them about three months. The plaintiffs then offered to show, that they were delivered by the witness to Burke, which offer w.as objected to by the defendant, and the objection was sustained by the court, and plaintiffs excepted. Questions were put to the witness Boughton by the plaintiffs’ counsel, to show that the castings were delivered by him to Burke, but the court ruled that they were improper. We think that this ruling of the judge' was incorrect. The question was, as was stated to the jury, to whom were the castings sold? Who was the purchaser? ' If .Murray was the purchaser the defendant was not liable, but if they were purchased by the defendant himself, he would, of course, be obliged to pay for them. The testimony ruled out by the judge was important for the purpose of showing who the;.purchaser of the castings really was; especially so as there is nqi'estimony to show that they ever came to the possession of Murray. Boughton testifies that he was in Murray’s employ, and went to get the castings, but he does not say that Murray sent him for- them, or told him to get them. He further testifies, that -he kept them about three months, and on his cross-examination says, “Murray left the country about two months after I got the irons; about three years ago.” This is pretty strong negative proof that Murray never received them, as they were kept by the witness until after he went away, and as there is nothing to show that the witness was authorized to receive them for him. The castings were, without doubt, delivered to the witness on the order, and at the request of Burke, and testimony to show that they were delivered by the witness ;to Burke, was there [122] fore relevant and important, for the purpose of showing that he really was the purchaser. It is true, that the order of Burke requests the plaintiffs to let Boughton have the castings for Murray ; but if Boughton was not authorized by Murray to get them, and they never were in fact delivered to Murray, he was not the purchaser, and the plaintiffs could maintain no action against him to recover their value. Under such circumstances we have no doubt that the plaintiffs could regard Burke as the purchaser upon whose order the castings were delivered, and to whose possession they came. The judgment of the court below must be reversed, and a new trial ordered.