#### Russell vs. Cady, survr.

Where there is a total want of evidence to sustain the verdict, this court'will award1® new trial: as where the jury render a verdict against the defendant, upon proofj. that Q-., being in possession of a house, which defendant had conveyed by deed, not recorded, to G’s wife, employed mechanics to repair it,, saying, but without authority from defendant, or proof of agency, that defendant would pay for the repairs; if not, he (GK) would pay for them.

*541 Appeal from the Cwcmt Cowrt of Pulasl&i County.

Hon. WilliaM H. Feild, Circuit Judge.

TRAPNAll and Piee & Cummins, for appellant.

Fowler, contra.

Mr. Justice "Waleer

delivered tbe opinion of tie Court.

Buchanan and Cady sued "William Bussell, in assumpsit, for wort and labor as house-joiners, and for materials. The general issue, payment, and the statute of limitations, were pleaded;; upon which issues were taken, and a trial had before a jury, who-found a verdict for the plaintiffs for $305 10; upon which judgment was rendered. Bussell moved for new trial, on the ground that the verdict was contrary to evidence;; which was refused,, and Bussell appealed to this court-,

The evidence given on the trial, is perserved' in a bill of excep-toins, and is, beyond doubt, amply sufficient to- sustain the verdict, if Bussell can be held accountable- for the wort. It appears,, from the evidence, that one Garritt employed the plaintiffs to-■wort upon a house, which- had been conveyed by Bussell to the-.wife of Garritt, the deed not having been recorded; and, at the-time Garritt employed the- plaintiffs, he told them- that Bussell would pay for the work, and that, if he did not, he- (Garritt) would. Garritt also testified that he had no- authority from Bussell to have the repairs made, charged for in the bill of particulars,, but did not tell plaintiffs that he had no- such authority; that some of the repairs were necessary, and some- not; that Bussell had authorized him- to- have a roof' put on the house, which he-did. This, however, was not a part of the work sued' for. That the house was Bussell's, but was intended for Garritt’s wife, to whom he had made a deed for it, but that, at Bussell’s request, the deed was not recorded. That Garritt had been in possession *542of tbe bouse ever since tbe repairs were made; that, at tbe time tbe contract was made, be bad some means of bis own, an.d credit.

This is, in substance, tbe evidence in regard to tbe contract, and tbe ownership of tbe property. There is no contest as to tbe performance ef tbe work, or its value; and tbe only question is, can tbe plaintiff bold Russell responsible for this work. We think not. Garritt is not shown to be Russell’s general agent; nor to have bad special authority to have tbe repairs made. Indeed, from tbe terms of tbe contract, tbe plaintiff must have known that Garritt bad no sucb authority, or at least a doubtful authority, or why did Garritt agree to pay, in case Russell should refuse? This was not Russell’s property; but tbe property- of Garritt’s wife. Tbe fact, that tbe deed bad not been recorded, could make no difference. Perhaps be thought so, when be said it was Russell’s property. But this could not be tbe case when be bad conveyed it by deed.

Tbe plaintiff's, no doubt, performed tbe work, believing that Russell would pay, or, if be did not, that Garritt was bound for tbe work, and able to pay. It may be their misfortune that be is not; and, if there was any evidence whatever of Russell’s assent to tbe work, or if be bad done any act from which an agency might have been inferred, in view of the merits of the-claim, we should not disturb tbe verdict. But we think that there is a total want of evidence to charge Russell for this work; and, for this reason, tbe court below should have granted a new trial.

Let tbe judgment be reversed, and tbe cause remanded, with instructions to grant tbe defendant a new trial, and for further proceedings to be then bad. •