Tattersall v. Hass.

fendant ceased, but up to that time the defendant was liable in the action and the plaintiff entitled to a reasonable satisfaction for the use and enjoyment of the premises by the defendant. It was agreed that it was worth a rent of $1,000 a year, and it appeared from the evidence that it was afterwards leased for that sum. There was nothing in the evidence to warrant the judge in finding that there was, as has been insisted upon on the ap peal, a surrender and acceptance of the premises by the plaintiff. The judgment must be reversed.

WILLIAM H. TATTERSALL v. RICHARD HASS.

The refusal of a justice to allow an amendment of a pleading, if in any case a ground of appeal, can only be so when no injustice would result from granting the application. Where a motion was made upon the trial to amend an answer, so as to add a new defence; held, that it was properly refused by the justice. Objection to questions as leading should specify the ground of the objection, so that the form of the question may be altered accordingly-otherwise the objection will not be considered upon appeal.

A judgment of nonsuit is no bar to another action for the same cause, where the nonsuit was granted because the plaintiff's evidence failed to make out a case.(a)

APPEAL by defendant from a judgment of the Fourth District Court. This action was for rent. The answer contained a denial of the allegations in the complaint and a plea of prior adjudica tion. Upon the day to which the trial was adjourned, after joining issue, the defendant moved to amend his answer, by inserting an allegation that the leased premises became untenantable by the negligence of the landlord. The motion was denied and the defendant excepted. Upon the trial several questions were asked, to which a merely general objection was interposed, the admission of which the appellant contended was erroneous,

(a) See Seaman v. Ward, ante, p. 52.

Tattersall v. Hass.

upon the ground that they were leading. The plaintiff read in evidence, subject to objection, a written agreement of hiring be tween the parties for the previous year, and called a witness who testified to a verbal agreement for the present year upon the same terms. The defendant, to sustain his plea of prior adjudi cation, showed that a suit was brought against him by the assignor of the present plaintiff for the same cause of action, in the Fifth District Court, in which judgment of nonsuit was rendered upon the close of the plaintiff's case. The defendant also offered to show that the leased premises became untenantable through the negligence of the landlord. The evidence was objected to and excluded. Judgment was rendered for the plaintiff.

J. Aitken, for the appellant.

John Anderson, Jr., for the respondent.

INGRAHAM, FIRST JUDGE.-The court below properly refused to allow the amendment of the answer. The plaintiff had brought his case on for trial, and the defendant then asked to amend the answer, by setting up a defence of which no notice had been given and which the plaintiff could not be expected to be prepared for with evidence. If the refusal of the justice to allow an amendment of pleadings is in any case ground of appeal, it can only be so when no injustice would result from granting the application. The defence proposed to be added by amendment was not one of which the tenant could take advantage, because no agreement to repair appears in the agreement of hiring. If the amendment was properly denied, the evidence offered to sustain the defence sought to be introduced thereby was properly excluded.

It would be idle to say that the court ought to have admitted evidence to prove a defence which it had refused the defendant leave to insert in his answer.

It was a question of fact for the court to decide for how long

Griffin v. Keith.

a time the premises were hired. The evidence was contradictory and his decision was final.

No objection was made to any question put to Foster, on the ground that the question was leading. We have held it to be necessary that the ground of objection in such a case should be stated so that the question may be correctly put to the witness. In other respects the questions were not objectionable.

The written agreement was properly admitted in evidence, tc show the terms of the subsequent hiring. That was on the same terms as for the previous year, and a reference to the agreement for the prior year was necessary, to ascertain the terms.

The suit previously brought in the Fifth District Court was no bar to another suit, because in that suit a judgment of nonsuit was granted. Such a judgment is no bar to another action for the same cause. Where a judgment of nonsuit has been rendered by the court, instead of deciding finally between the parties, it has been held that such a judgment might be set up in bar of another suit; but that rule is not applicable to a case where the nonsuit was granted for want of evidence on the part of the plaintiff to make out his case. Such appears to have been the result in the cause referred to, and did not prevent the present action. There is no ground for reversing the judgment. Judgment affirmed.

DANIEL GRIffin v. ShepHERD C. KEITH.

The defendant's admission, that he had had certain goods, is sufficient evidence of delivery to maintain an action for the sale and delivery of the goods, although it appears that they were in fact delivered to some other person.

In an action for goods sold and delivered, it appeared that the goods were delivered to one B. K., upon the agreement that he should sell them as the accredited agent of the plaintiff, and return to him the goods unsold. The goods, however, were charged by the plaintiff, in his books, to the defendant, S. K. The plaintiff testified they were sold exclusively upon his credit. The bill was made out in his

Griffin v. Keith.

name, and was presented to and admitted by him, and he agreed to return the unsold goods within a specified time, which agreement was not fulfilled. Held, sufficient to sustain a recovery against him as principal debtor.

APPEAL by defendant from a judgment of the Marine Court. This was an action for goods sold and delivered. They were delivered to the brother of the defendant, but were charged to the defendant himself, the agreement between the parties being that the goods which were sold by the defendant's brother were to be paid for and the others were to be returned. It appeared by the testimony of one of the plaintiff's witnesses, that the defendant acknowledged that he had the goods in question, although it also appeared, by the cross-examination of the same witness, that the goods were in point of fact delivered to the brother. The defendant moved for a dismissal of the complaint, upon the ground: 1. That there was no evidence of a delivery of any of the goods to the defendant; and, 2. That there was no evidence of any written agreement of guaranty by the defendant, who, if liable at all, was only liable as guarantor. The motion was denied and judgment was rendered for the plaintiff. The evidence in the case, relating to the question of the defendant's indebtedness, sufficiently appears in the opinion of the court.

W. Romaine, for the appellant.

Niles and Bugley, for the respondent.

DALY, J.-The witness, Gleason, proved that the defendant acknowledged that he had the goods enumerated in the bill that was given in evidence. This rendered it unnecessary to prove that they had been delivered. He also proved that the prices charged in the bill were fair and reasonable. This was sufficient to entitle the plaintiff to maintain the action, and the motion for a dismissal of the complaint was properly denied.

It appeared that such portion of the goods as were not sold were to be returned, and that the plaintiff demanded the return of such as were not sold, and that Keith promised to return

Griffin v. Keith.

them by the 1st of February, 1855; but it did not appear that any part of them had been returned: presumptively, therefore, the defendant, after the request made of him, was liable for the whole amount he had received.

There was nothing to show that the defendant's engagement was collateral, and that his brother was the principal debtor. The goods were charged, upon the plaintiff's books, to the defendant, except the item of November 4th ($45.18), which the justice appears to have disallowed; and the plaintiff swore that he never looked to Bezar Keith for payment, but to the defendant, and that he sold the goods on the credit and responsibility of the defendant; in corroboration of which, Gleason swore that the plaintiff said to the defendant, in the witness's presence, in a conversation respecting the gauges, which the defendant's brother had got: "You know it was on your own responsibility;" and that in the early part of January, 1855, the defendant admitted to the plaintiff, that the bill, which was made out, charging him with the goods, was correct. One witness swore, that the plaintiff said, when he was making arrangements for the sale of the gauges, that B. Keith was going to sell them as his agent, and that defendant would be responsible for them; and another wit ness testified, that he had heard the plaintiff say that he had a man selling these gauges. But this was not necessarily inconsistent with the truth of what had been sworn to by the other witnesses. It might be to the interest of all parties, that B. Keith should offer these articles for sale, as the accredited agent of the plaintiff. The conditions of sale, that they were not to be paid for unless sold, but if unsold were to be returned to the plaintiff, the whole or any part of them, rendered him in a certain sense but a kind of agent for their sale. The plaintiff, therefore, might very well say that B. Keith was to sell them as his agent, or that he had a man selling these gauges, as he had agreed, if they were not sold, to take them back again. He demanded their return or the return of what had not been sold, and the suit was not commenced until a month after the time when the defendant had promised to return what had not been sold. The defendant