#### Badger and another vs. Daenieke.

*January 11*

*January 30, 1883.*

*(1) Partnership: sale of goods to one ignorant thereof. (2) Application of payments. (3) What finding sufficient. (J¡.) Costs in action to enforce lien.*

*1.*A partner who sells goods of the firm to one ignorant of the existence of the partnership, is the agent of the firm, and an action for the price of the goods sold may be maintained by the firm.

2. Where a party owes one account to an individual, and another to a firm of which such individual is a member, and the individual account is assigned to the firm, it is immaterial upon which account money paid is applied.

3. A finding that all the allegations of the complaint are true is sufficient.

4. In an action to enforce a lien for building materials the plaintiff, on recovering judgment, is entitled to full costs. R. S., sec. 8324; *Weston v. Olsen,*55 Wis., 613.

APPEAL from the Circuit Court for *Wmnebago*County.

In 1881 the plaintiffs, *Badger*and Gould, were partners in the business of manufacturing and selling lumber, and the plaintiff *Gould*at the same time carried on a planing-mill and sash and door manufactory. The defendant ordered building materials of Gould, not knowing that *Badger*was his partner. The materials were furnished pursuant to the order, and were used by the defendant in the construction of a building in the city of Oshkosh. Part of the materials so furnished belonged to *Gould*alone, and the remainder to the firm of *Badger & Gould;*and it is claimed that there is an unpaid balance on each account.' *Gould*filed a lien against such building for his alleged balance, and then assigned his demand to *Badger <& Gould.*That firm also filed a lien against the same building for the alleged balance due it, and in due time commenced this action to enforce both liens. The court found due and unpaid on both accounts the sum of $30.48, and found generally that all the *679allegations of tbe complaint are true. Judgment was entered for tbe plaintiffs pursuant to tbe findings, from wbicb tbe defendant has appealed to tbis court.

*James Freeman,*for tbe appellant.

For tbe respondent tbe cause was submitted on tbe brief of *Jackson*c& *Thompson.*

LyoN, J.

1. It does not seem to be disputed that tbe amount of both accounts is $230.48, and tbe defendant does not claim that be bas paid tbereon above $200. Neither is it disputed that all of tbe materials furnished were used in tbe construction of tbe building mentioned in tbe petitions for liens and in tbe complaint. Tbe bill of tbe plaintiff *Gould*was $196.58, on wbicb payments were credited amounting to $175. Tbe bill 'of tbe plaintiffs, constituting the firm of *Badger & Gould,*was $33.90, on which was credited a payment of $25. Tbe defendant claimed that tbis item of $25 should have been applied on tbe bill of *Gould,*wbicb would have paid it imfull and a little more, and that because be purchased air the materials be bad of *Gould*alone, the plaintiff’s firm could enforce no claim against him for tbe price of any of tbe materials. It is undisputed that the plaintiffs owned the materials charged to tbe defendant in their account. That being so, they may maintain an action for the price thereof. *Gould*was in fact the agent of tbe firm in making tbe sale. It is quite immaterial that tbe defendant supposed be was dealing with *Gould*alone, and did not know that tbe firm owned any part of tbe materials wbicb be purchased. In a case like tbis a principal may avail himself of a contract made by an agent in bis own name, but really for tbe principal, although tbe party with whom tbe agent contracts was unaware of tbe agency. *Stowell v. Eldred,*39 Wis., 614.

Tbe defendant supposed that all of the materials purchased by him constituted a single account, and that be was *680indebted to *Gould*alone for the unpaid balance thereof. The effect of *Gould's*assignment of his account to the firm was to make such balance payable to the plaintiffs, instead of *Gould*alone. This being so, it seems quite immaterial whether payments be applied to one account or the other, as the application will not affect the aggregate balance due on both accounts. Hence, were it found that the $25 credited on plaintiffs’ account should be applied on the other account, the fact would still remain that there is an unpaid balance on both accounts due the plaintiffs, equal to the sum which the plaintiffs have recovered. This alleged misapplication of the payment of $25 (if it has been misapplied) is not, therefore, a sufficient cause for a reversal of the judgment.

2. It is claimed that the finding that all the allegations of the complaint are true is insufficient. We think otherwise. Such a finding is but an application of the maxim, *“ cerium est quod ceri/um reddipotest?*It is impossible that any party to an action can be prejudiced by the use of this form of finding. It is a form in common use, and its sufficiency has always been recognized by this court. See *Demming v. Weston,*15 Wis., 236; *Catlin v. Henton,*9 Wis., 476; *Downer v. Sexton,*17 Wis., 29.

3. The plaintiffs' are entitled to recover full costs by virtue of the statute. *Weston v. Olsen,*55 Wis., 613.

*By the*Gourt.— The judgment of the county court is affirmed.