pay him a small sum for it. Trimlet told him he had contracted with the defendant for it, that the work was in that contract.

Monk then objected that the plaintiff was really a subcontractor (a) under Trimlet, and must be taken to be in the same position; that therefore the written contract of Trimlet with the defendant must be produced.

CHANNELL, B., was of that opinion, but not wishing to stop the case, offered to reserve leave to enter a nonsuit. Ultimately, however, the contract was produced, and witnesses were called on both sides.

CHANNELL, B. (to the jury).-Was there a distinct contract by the defendant with plaintiff to do this work for him?

(a) A sub-contractor cannot sue the employer for work within the contract; Bramah v. Abingdon, 15

Verdict for the plaintiff (b).

East, 62, in notis.

(b) A nonsuit was entered.

1861.

ECCLES

บ.

SOUTHERN.

Coram Martin, B.

SMITH AND OTHERS v. RUDHALL.

Trinity Term. 1862.

ACTION for the price of lime, &c. sold to the defendant. Defendant

Plea: never indebted.

Prentice (with him Connolly) for the plaintiffs.
Denman and Powell for the defendant.

having employed a builder to erect some houses, and given a guarantee for a supply of materials to the builder to a

and afterwards

One Jenkins had contracted with the defendant to build him two houses. Jenkins wanted the plaintiffs to supply certain amount, the lime, &c., but they declined to do so without a gua- an order for a rantee. The defendant gave a guarantee for the amount further supply of 2001., and lime to that amount was supplied and paid for by the defendant. More lime was still required, and

to a certain

amount, and more materials

having been supplied on the

order of the builder-the defendant being constantly on the premises :-Held, that it was for the jury whether he had so acted as to lead the plaintiff to believe that the latter supply was to be on his credit.

1862.

SMITH and Others

v.

RUDHALL.

for this the defendant gave an order on the plaintiffs, supply so much lime, &c.," but limited to the amount of 501.; and the lime to that amount was supplied and paid for as before. Jenkins still required some more, and more was supplied by the plaintiffs on his order, to the amount of nearly 501., without any further express order or authority from the defendant; but he was on the spot continually, and indeed resided in one of the houses, then completed.

On the part of the defendant, it was contended that there was no evidence of any contract by him to pay for this latter supply, the original guarantee and the subsequent order being both limited in amounts.

At the close of the case,

MARTIN, B. (to the jury).—Did the defendant so act as to lead the plaintiffs to suppose that the supply in question was to be on his credit? If so, find for the plaintiffs.

Verdict for the plaintiffs (a).

(a) Vide Sweeting v. Asplin, 7 M. & W. 165.

Trinity Term.

In an action for the price of articles of house furniture ordered by the son of the defendant in his name, the fact that the father, the defendant, some months afterwards,

in the house

and claimed

BROOKS v. MERRYWEATHER.

ACTION for goods sold.

Plea: never indebted, and payment after action brought.
Tulfourd Salter for the plaintiff.

Tindal Atkinson for the defendant.

In June, 1860, a customer of the plaintiff, an upholsterer, at Brighton, had introduced to him the son of the defendcame to reside ant, as "Captain Merryweather," and he had ordered some carpets, &c. to be sent to a certain house, as the plaintiff said, for his father, the defendant; but, as he said, evidence from for himself. In point of fact, the father had not been, and was not, at Brighton at the time, and the goods were adoption of the selected and purchased by and for his son. They were,

the goods as his:- Held,

which a jury

might infer his

order.

however, sent with a bill made out to Mr. Merryweather; and it appeared that the son had changed his name to Merryweather Turner, and although he said that ameng his friends he still used the name of Merryweather only, he admitted that on all public occasions, and sometimes to tradesmen, he went by the other name. The plaintiff knew neither the one nor the other personally; and there was evidence that the son had publicly, in Brighton, assumed the name of Merryweather Turner. The plaintiff had notice to produce his books, but they were not called for on the part of the defendant. A second in

voice was sent in, made out to the son.

In July, 1861, the defendant, the father, came to reside at Brighton at the house in question, where the carpets. were laid down, and there he and his son had resided since. There was evidence that the defendant was rated for the house (a). Just after he came there were applications for payment, and then a writ issued against him, which, however, was not served until October. In November, the debt was paid by the son, but the father's liability was disputed, and the action was continued on account of the costs.

In March, 1862, there was a writ of execution against the son; and when the officer came to levy, the defendant, the father, claimed the goods as his; his son supported the claim, and the officer withdrew.

At the close of the case,

MARTIN, B. (to the jury).—The first question is, whether the plaintiff believed, when he was supplying the goods, that they were supplied on the orders and the credit of the defendant? That is, did the son so conduct or express himself as to lead the plaintiff to believe so? But that will not be enough, unless the defendant authorized or afterwards adopted that conduct, or act, of his son. And

(u) See Justice v. Elstob, Vol. I., p. 256, et vide post.

VOL. III.

L

F.F.

1862.

BROOKS

v.

MERRY

WEATHER.

1862.

BROOKS

v.

MERRY

WEATHER.

the next question, therefore, will be, whether the defendant
did so adopt it? The original invoice is important on the
first point; the second matters not, for the point is, to
whom was the credit given at the time of the order? For
that reason it is that the original entries in the books are
so important (a). Then, as to the other question, how far
the defendant is responsible for, or adopted, his son's acts;
their statements to the bailiff are important; and so is the
fact of the payment of the debt, for though the payment
was by the son, it was in an action against the defendant.
The fact of the payment of the rates by the defendant is
evidence, but very weak evidence (b), for the name might
have been given by a servant.

(a) Vide Charlton v. Allen, Vol. II., p. 549.
(t) Vide ante, p. 145 (a).

Trinity Term. On a contract by a retiring partner to pay

a certain sum,

by bills due at different periods, two only of them having become due before

action, and to

execute a deed

of dissolution, the plaintiff was held entitled to recover the whole

rest), and a

ACTION

MORLEY v. BAKER.

on a contract for a dissolution of partnership between the parties, reciting that 500l. was due from the defendant to the plaintiff on a balance of accounts; and the covenant being, that the defendant would pay to the plaintiff the said sum so due and owing to him; the same to be secured by bills of exchange of the defendant, as follows, i. e. 267. in six months, 261. in twelve months, 507. in fifteen months, &c. There was also a covenant by the defendant to execute a deed of dissolution.

Averment, that only two of the bills had been given sum (less inte- (which had become due before action), and that the deed further sum, to had been tendered to the defendant for execution. First breach, that he had not given the other bills. Second breach, that he had refused to execute the deed.

be reduced to

a shilling on his execution of the deed, but not the

expenses of the deed.

Prentice for the plaintiff.

Clear for the defendant.

The agreement was proved and put in, and it appeared that the stipulations were distinct and independent (a).

The tender of the deed and the defendant's refusal to execute was admitted.

Clear, for the defendant, submitted that the plaintiff could only recover the amount of the two bills which were due (b), and merely nominal damages on the other breach.

1862.

MORLEY

V.

BAKER.