No. 43.

#### George S. Russell v. Edward G. Harris.

An action of assumpsit for $420.69, the balance of an account for lumber delivered by appellant’s firm to Frank Stewart, who had contracted to erect two houses for appellee. The claim was that defendant promised, before the delivery, to pay the bill prorata with those of other parties, for material furnished to the contractor and put into these buildings, which he denied. Plaintiff’s clerk, who went to see him on the subject, testified that he understood him in the course of conversation to make the promise stated. Defendant testified that he might have said and probably did say he would do, voluntarily, as well by them as by any others, but expressly and positively refused to be bound as by a promise. These were all the witnesses and this the substance of all the evidence upon the only question of fact that was in dispute. It appeared that defendant did pay. others in full, but only upon Stewart’s orders, and that upon like orders he paid plaintiff’s firm something over $400, and the balance to Stewart before he received notice that anything remained due to them. The question was submitted to the jury upon this evidence, under instructions to which no specific objection is urged, and they found for the defendant.

Judgment affirmed.

Judge below, Cyrus Epler.

Attorneys, for appellant, Messrs. Morrison & Whitlock ;

for appellee, Mr. Osoar A. De Leuw.

Opinion filed Dec. 4, 1885.

Opinion by Pleasants, J.