The testimony in this case was somewhat conflicting. No question of law was reserved, and we must therefore infer that it was properly administered.
Complaint is made that the jury erred in returning a verdict for the plaintiff. The parties of record were witnesses, and the case must have turned upon the degree of credit *161given to the one or the other. In the opinion of the jury, it would seem that the testimony of the plaintiff preponderated. And tlie question presented is, was their conclusion, under all the circumstances, so erroneous as to call for the interference of the court. The plaintiff, in substance, testified that he made a special contract with Joseph B. Foss to receive his lumber into his dock, and to sell the same on commission, and in pursuance thereof advanced to him his three notes, amounting to the sum of $1500, and as security for such advances, was to have a lien on the lumber, and that his salos, previous to the alleged trespass, did not exceed $300. He denies all knowledge of the defendant’s purchase from Eoss, or that he ever consented to, or ratified the same.
While on the other hand, Eoss, admitting the negotiation as to the delivery and sale of the lumber, denies the existence or creation of any lien, or that the contract in that particular was otherwise than expressed in his receipt for the notes of March 19, 1856. And the defendant testifies that the plaintiff was informed of his negotiation for the purchase of the lumber in dispute, and neither then, nor any time at or previous to the sale, made objection or claimed any interest therein adverse to the title of his vender.
Both parties, as appears from their documentary evidence introduced, claim title under Eoss, and any interest of third persons, not necessarily intervening in this controversy, must be disregarded. Erom his testimony we infer the relation of consignor and factor, with advances from the latter to the former, which at common law would create a lien on the goods consigned, and this inference is further sustained by evidence introduced without objection, that such was the custom of the place. The receipt produced, which Eoss says was the only contract, is not inconsistent with such instruction, if otherwise, the parol testimony tending to prove that fact should have been objected to, but being in the case without objection, it must have its force and effect.
But it is contended that Eoss was only the agent for certain owners, and as such had no authority to pledge the lum*162ber to tbe plaintiff that he conld sell, but not incumber. And to sustain this proposition his testimony is principally relied on. If he was not the owner or invested with ample authority to contract with the plaintiff, then, if the plaintiff has stated truly, as to which the jury were the judges, he presents himself as the willing instrument in the perpetration of a fraud, either for his own benefit or that of his principals, for by giving security on the lumber delivered or to be delivered, he received the plaintiff’s notes to the amount of $1500, and as to that act of his agency we hear of no repudiation. And presuming that the jury was properly instructed in matters of law as to Eoss’ authority, we cannot say that they came to a wrong conclusion. We doubt whether any principle has been disclosed by Eoss, against whom, on his evidence, the defendant can maintain an action on his implied warranty of title, if he fails in this suit. If he thinks otherwise, he can test that question.
The whole subject matter in controversy then, is reduced to this. Did the plaintiff know of the defendant’s purchase or negotiation to purchase, and did the former consent or conceal from the latter his claim on the property ? If so, he would be guilty of a fraud and estopped to deny the defendant’s title so acquired. Upon this point the parties of record are directly opposed, and Eoss’ evidence aids that of the defendant. Various considerations, undoubtedly, were urged by the learned counsel upon the consideration of the jury to induce them to believe the one and discredit the other party, and in view of all the circumstances we cannot say that their verdict was so erroneous as to call for our interposition.
Motion overruled, and judgment on the verdict.