Porter v. Barling

Appeal from the District Court of the Fourth Judicial District.

The respondent filed her complaint against the appellants, stating, that in December, 1850, the defendants sold her a quantity of merchandise, and the frame, lumber, and materials for a house, for $850, and agreed to deliver the same to the plaintiff when requested; that the plaintiff paid the defendants the $850 at the time of the sale; and that the defendants neglected and refused to deliver the frame, lumber, and materials, but on the contrary, in January, 1851, sold and disposed of, or otherwise converted the same to their own use: to the damage of the plaintiff $800, for which sum she prayed judgment.

The defendants answered, denying the complaint. By consent of parties the cause was referred to a referee, “to report an account between the parties, and to give his conclusions.” The referee made a report, stating, that from the evidence adduced, he found that the plaintiff purchased of the defendants, in December, 1850, a quantity of furniture and lumber: that the plaintiff received the furniture; but that eleven thousand feet of lumber, worth $35 per thousand, was not received by the plaintiff, but was landed from a vessel and deposited on North Beach, and afterwards disposed of by the defendants; and therefore the referee found that the defendants were indebted to the plaintiff $385.

The plaintiff filed the report: and on her motion the same was confirmed, and final judgment rendered for the plaintiff for the sum reported, and costs; from which judgment the defendants appealed.

A case, or statement of facts agreed to by the counsel for the parties was annexed to the record. It consisted merely of the minutes made by the referee of the evidence adduced before him, and the various objections, &c., of the parties on the hearing before the referee. From this statement, it seems that the lumber and other articles were on board a vessel, and sold according to a bill of lading, having been abandoned by the consignee; and that the defendants insisted, before the referee, that they were acting merely as agents in the transaction. There was a large mass of evidence; but as the Court declined passing on the merits of the case, it is unnecessary to state it.