#### Aldrich *versus*McConnell’s Executors.

1. McConnell agreed with defendant to ship his (defendant’s) leather to Frye, a commission merchant, to sell; McConnell to make advances on it to defendant; and, as the sales were made, give him credit on the money so advanced. Frve received the leather, kept an account with McConnell, but none with defendant, and always remitted to McConnell, charging commission. There was evidence of the same arrangement with other tanners. Meld, to be evidence for the jury that McConnell was liable to defendant for the leather.

2. A judgment entered against defendant on a note in favor of McConnell was opened and defendant let into a defence, on the allegation that the note was for advances on leather to be sent to Frye, and that leather had been sent to Frye after the execution which had not been credited. The defendant asked the Court to charge:If the mosey included in the note upon which thejudgment in this case was entered was money advanced to Aldrich on account of leather to be thereafter shipped to Frye on account of McConnell, then Aldrich would be entitled to a credit on this judgment for the leather afterwards sent.” The Court answered: “We can find no testimony to justify this point, and we answer it in the negative.” Meld, to be error; there was sufficient evidence to justify the affirmance of the point.

3. It was immaterial;-as respects McConnell’s liability for the leather shipped by defendant to Frye, whether the transaction was a sale to him or not, if he agreed to be responsible for the proceeds when sold.

4. If McConnell was the mere agent of the defendant, and was to account only for the proceeds actually received from Frye, he was not entitled to’ a credit on his judgment for the leather.

October 23d, 1874.

Before Agnew, C. J., Sharswood, Williams, and Mercdr, JJ.

Error to the Court of Common Pleas of *Erie*County, of October and November Term, 1874, No. 43.

On the 29th of November, 1871, judgment was entered in the Common Pleas of Erie County by confession on a sealed note to Ilenry McConnell, with a warrant of attorney, dated January 10th, 1870, by R. S. Battles and others, executors, etc., of said Henry McConnell, deceased, against William Aldrich, for $2065.43.

On the 23d of December, 1871, the defendant filed an affidavit, on which'he moved that the judgment be opened, and he be let into a defence to the extent of $1184.49. The affidavit set out that McConnell had engaged the defendant to send leather to J.F. Frye & Brother, of Boston, and agreed to advance money to the defendant, and, as fast as the sales of leather should be made by Frye, that he (McConnell) would give defendant credit for the amount of sales on the money *172advanced ;’that, after the date of the note, sales were made by Erye to the amount of $1184.49, for which McConnell had not given defendant credit.

On this affidavit the Court granted a rule to show cause why the judgment should not be opened as moved for. After-wards and before the hearing of the rule the defendant paid all the judgment except the $1184.49.

On the 30th of October, 1872, the rule was made absolute. The defendant pleaded payment and. set-off.

The. case was tried September 16th, 1873, before Vincent, P. J.

The plaintiffs gave in evidence the note and judgment,

The defendant read the deposition of J. E. Frye, taken March 4th, 1872. Pie testified: “I had an agreement with Henry McConnell for selling leather manufactured by different persons in Pennsylvania about ten years ago. I was to receive and sell for him such leather as he should send, charging him one-half of my regular commissions, five per cent.', and should remit the proceeds when the sales made by me matured. Under this agreement leather manufactured by Aldrich was sent to me; all leather sent to me by McConnell, whether manufactured by Aldrich or others, was credited to McConnell; the accounts were kept with McConnell; he was credited with the proceeds of sales and charged with freight, commissions, money sent to him, etc. I was responsible to McConnell alone. I cannot say how much leather manufactured by Aldrich was sent after June 11th, 1869, because I kept no account with Aldrich. I have not paid McConnell in full for the leather sent by him, because I have failed and have been discharged under the bankrupt laws. I received no leather from Aldrich.”

*Julius Wells*testified: “ I had an arrangement with McConnell to ship leather to Boston; he told me he had an arrangement with Aldrich to ship leather to Frye ; he wanted me to ship leather to Erye on the same terms as Aldrich; he said Erye was responsible and he would see me paid; he said all I. had to do was to ship leather in the name of McConnell & Webster to Frye. McConnell paid me for this leather; he said Aldrich had the same arrangement. After Frye’s failure McConnell said there were $1200 or $1400 due Aldrich on this account. I always shipped the leather in the name of McConnell *&*Webster; never received any money from Erye on leather shipped in their name.”

*Jonathan Sheldon*testified: ’“I had dealings in leather with McConnell & Webster. I went to see McConnell to settle up; he urged me to continue. We shipped our leather to Frye in the name of McConnell & Webster. McConnell *173said he would advance money as we wanted it; we got our pay from McConnell; we. were dealing with McConnell & W ebster.”

*Herdin Sheldon*testified: “ McConnell said he wanted me to tan leather by the pound; then he wanted to. buy our rough leather to send to Frye; he said he was a good man. I dealt only with McConnell & Webster, but sent leather to Frye through them. McConnell said he was dealing with other tanners, and mentioned Aldrich as one who was dealing with them in the same way.”

The plaintiff in rebuttal gave evidence in answer to the defendant’s case, amongst which was the following .letter: '

“ Girard, June 11th, 1869.

“ William Aldrich, Esq.

“ Sir : When you were here the other day I understood y ou to say that you intended to send some more leather to the house that made you an advance. If you are disposed to send it to Mr. Frye I will advance oh it, at the same rate of interest that they charge you in Boston.

“ Respectfully youi’S,

“Henry McConnell.”

The defendant submitted this point: ■ “ If the money included in the note upon which the judgment in this case was entered was money advanced to Aldrich on account of leather to be thereafter shipped to Frye on account of McConnell, then Aldrich would be entitled to a credit on this judgment for the leather afterwards sent.”

To which the Court answered: “We can find no testimony to justify this point, and we answer it in the negative.”

Court also charged:

“ . . . . There is a dispute between the parties as to the arrangement made between them under which defendant’s leather was sent to Frye. (The defendant alleges that he sold his leather to McConnell directly, and had nothing whatever to do with Frye.)

“ The plaintiffs contend that McConnell was only the agent of the defendant, and had no other interest in the transaction than as agent, and a sharer in the commissions charged by Frye on the sales of leather in Boston. . . .

“ Frye says he never knew Aldrich in the leather dealings with McConnell, but he knew that he was getting Aldrich’s leather, sometimes by marks on leather, and sometimes from McConnell. The plaintiffs contend that their testator advanced money to the defendant on the leather sent by the defendant, and that the proceeds of sale were sent to him to *174secure him for these advances, and that leather was sent in his name to identify it, and thus secure McConnell his share of the commissions. . . .

“ The testimony of Wells does not show that McConnell was a purchaser of the leather of defendant. It only shows that McConnell urged him to send to Frye, whose responsibility he indorsed. I-Ie also said that he would see the leather paid for. This doee not make McConnell a purchaser by any means. It would at the most make him a guarantor. What other evidence is there that the defendant considered McConnell the purchaser of his leather ? . . .

“. . . . (When last settlement was made, which was more than a month after last sales, and after Frye's failure, the defendant made no claim that this debt was due from McConnell, and not from Frye, and this, if true, is strong evidence that he did not then think he had such claim against McConnell.) So wheu asked for the interest on the notes, or the principal, he set up no such claim, but only refused to pay ten per cent, interest-any longer. All these circumstances tend to raise a presumption that no such claim existed, for if it did, the law presumes that a man of ordinary sense, knowing what he was doing, would assert it when settling up the very business of which it formed a part.

“ A settlement is conclusive of all that is included in it until fraud or a plain mistake has been shown, and such settlement is presumed to include all the transactions connected with the business settled up to time of settlement. The party alleging mistake or fraud in the settlement must establish it by clear evidence.

“ The letter of McConnell to the defendant, dated June 11th, 1869, is but an agreement on its face to advance money to him on his leather at the same rate of interest he was paying in Boston. This is not an agreement to purchase by any means, it is but an agreement to lend him money on the security of his leather. . . .

“ (It riiay be that Frye did not know any one in the transaction but McConnell, and the evidence of Frye, if believed, certainly shows that fact, and it also shows why he made that arrangement with McConnell, who was to influence trade to Frye, and receive half the commissions charged for doing so.) This is not inconsistent with an agreement between McConnell and defendant, that as between themselves Frye should be paymaster to the defendant, and if, in the settlement between them, they both treated Frye as defendant’s debtor, it is strong evidence that such was the arrangement.

*175“ (And if, as is alleged, Frye agreed to pay balance due defendant in commissions on leather to be sent him by defendant, and with defendant’s assent, it is also evidence that the defendant was the creditor of Frye, and not of McConnell.)

“ Frye as a broker would only be responsible to his consignor for sales actually made, or made in full faith, that is, to known irresponsible parties, unless he guaranteed sales; and unless McConnell agreed to be liable for leather sent in his name, he would not be liable except under the same circumstances.

“ (If McConnell purchased the leather sent forward by the defendant, he must pay for it, whether he ever received the money from Frye or not. If he was not a purchaser, he is not liable. . . .)”

The verdict was for the plaintiffs for $1300.

The defendant took a writ of error, and assigned for error the answer to his point and the parts of the charge in brackets.

6?. *II.*Cutler, for plaintiff in error.

The allegation of the defendant was not that there was an absolute sale of leather to McConnell, but that there was an agreement between him and defendant that Aldrich should ship leather to Frye in McConnell’s name, and that McConnell would pay defendant. The Court, in effect, charged the jury that unless they found an absolute sale to McConnell the plaintiff ought to recover.

*8. JB. £ T. 8.*Woodruff, for defendants in error,

Mr. Justice Williams

delivered the opinion of the court, January 7th, 1875.

The only question in this case is whether there was any evidence tending to show that McConnell, the plaintiff’s testator, was responsible for the proceeds of the leather which the defendant shipped to Frye, after giving the note upon which the judgment was entered. If there was, the point submitted by the'defendant should have beeu affirmed; otherwise it was properly answered in the negative. If the defendant shipped the leather with the understanding and agreement that McConnell would account for and pay him the proceeds of sale after deducting charges for freight and commissions, he is clearly entitled to a credit on the judgment for the net proceeds of the leather. It is true that there is no direct evidence showing what were the precise -terms of the agreement in pursuance of which .the leather *176was shipped, But the proof is uncontradicted that all the leather which the defendant had previously shipped to Frye, was shipped in the name of McConnell, and at his request,, and that he accounted for and paid the net proceeds of sale to the defendant. Frye sold the leather for McConnell, and was responsible to him for the proceeds. In his deposition he says: “The agreement” (referring to the agreement between himself and McConnell), “ was that I should receive and sell tor him such leather as he should send, charging him therefor one-half of my commissions, and that I should'remit the proceeds of such leather at the time when sales made by me matured. . . . All the leather sent by McConnell, whether manufactured by. Aldrich or other parties, was credited- to the account of McConnell.....He was credited with the net proceeds of the sale, and charged with the cost remitted. I was responsible to McConnell alone.” Might not the jury have fairly inferred, without other evidence, that McConnell agreed to account for the proceeds of the leather which the defendant shipped to Frye at his request? If not, why did the defendant ship the leather ? What motive had he for shipping it in McConnell’s name, if the latter was not to be accountable for the proceeds of sale? But there was other evidence bearing upon the question of his responsibility. His declarations and course of dealing with other parties strongly tended to show that he agreed to be answerable for the proceeds of the leather shipped by the defendant. Julius Wells, one of the parties, testified: “Had an arrangement with Henry McConnell to ship leather to Boston. McConnell told me he had an arrangement with the defendant to ship leather to Frye & Co.; I think James F. Frye. This was in the fall of 1869. He wanted me to ship to Frye & Bro. on same terms as Aldrich did. He said- Frye was responsible, and he would see me paid. Said all I had to do was to ship leather in name of McConnell & Webster to Frye. McConnell paid me for the leather so shipped. He said Aldrich 'had the same agreement. After Frye’s failure, McConnell said there was $1200. to $1400 yet due Aldrich on this account. Think this was some time in 1870.” Jonathan Sheldon, another of the parties, also testified: “ Had dealings in leather wdth McConnell &• Webster. After dealing a year or two concluded to change. I went to see McConnell to settle up. McConnell urged-me to continue with him. He said he and Webster were responsible, and I had better deal with them than strangers. He said he was having leather from defendant and others on same terms as from us. We shipped our leather to Frye in name of McConnell & Webster. McConnell said he would advance us money as we wanted it.' *177We got oar pay from McConnell.” To tbe same effect is the testimony of HerdinSheldon. He said: “Saw McConnell; said he wanted me to tan leather for him by the pound. Then wanted to buy our rough leather to send to Frye. Said he was a good man. I dealt only with McConnell & Webster, but sent leather to Frye through them. McConnell said he was dealing with other tanners, and named the defendant as one who was dealing with them in the same way.”

The testimony of these witnesses, taken in connection with the other evidence referred to, clearly tends to show that McConnell agreed to be responsible for the proceeds of the leather which the defendant shipped to Frye. The Court below was, therefore, in error .in answering the defendant’s point in the negative on the ground that there was no evidence to justify it. There was abundant evidence to justify the defendant in asking the Court to charge the jury, “ that if the money included in the note upon which the judgment was entered, was money advanced to Aldrich on account of leather to be thereafter shipped to Frye, on account of McConnell, then Aldrich would be entitled to a credit on the judgment for the leather afterwards sent.” And the Court should have affirmed the point and submitted the question to the jury. In the view which we take of the case, it is immaterial, so far as it respects the liability of McConnell for the leather which the defendant shipped to Frye at his request, whether the transaction can properly be regarded as a sale of the leather to him or not, if he agreed to be responsible for the proceeds when sold. If he was to account for the proceeds of sale, the defendant is entitled to a credit for the amount thereof. But if he was the mere agent of the defendant, and was to account only for the proceeds actually received from Frye, then the defendant is not entitled to a credit on the judgment for the leather which he shipped to Frye after he gave the note.

Judgment-reversed, and a *venire facias de novo*awarded.