Under the general issue, in an action for goods sold, a delivery to the defendant having been shown, he was permitted to introduce evidence that he took them not as a purchaser but under an agreement with the plaintiff, which he had faithfully carried out, that he should forward them as his own to a third party, who had agreed to buy them form him at a certain price, together with a bill for that amount, in his own name, and on receipt of the buyer's check *Page 615 for the purchase money, should indorse it over to the plaintiff, who was then to pay him a commission for his services. This was manifestly relevant to the issue. It went directly to negate the averment that the goods had been sold to the defendant, by showing that he had simply acted as the plaintiff's agent in selling them for him to some one else.
The court was requested to charge the jury that if the defendant claimed that he acted as a commission merchant he had the burden of establishing it by a fair preponderance of evidence. His defense not being an affirmative one, this instruction was properly refused.
Instructions were further requested and refused as to the general responsibilities of commission merchants for collections on sales, or for selling to one in doubtful credit, or for treating the debt as their own. The court properly told the jury that the pleadings raised no question of that nature. The plaintiff relied on an absolute sale to the defendant, and the defendant relied on a special agreement which precisely regulated his conduct in these particulars.
The plaintiff complains that although his complaint followed Form 85 and contained all the "common counts" as there given, the jury were instructed that he had alleged a sale of the goods to the defendant and could prove nothing else. The bill of particulars being simply for goods sold, the court properly disregarded all counts not appropriately applicable to it. Rules of Court, p. 41, § 129.
There is no error.
In this opinion the other judges concurred.