The sole question in this case is one of fact. It is whether the goods which were sold by Loisson to the plaintiffs in Kovember, 1895, were sold by the .firm of R. & H. Adams, or were sold by the defendant McLean. The plaintiffs alleged that they bought the goods of McLean and paid for them, and he did not deliver them, *102and they asked damages- of him for his failure to deliver them. He denied that the sale was made by him.. This was the issue, and the plaintiffs were bound to prove by a preponderance of the evidence that the goods were bought of '3IcLean as. they alleged. The referee having, upon conflicting • evidence, found for the defendant upon the ground that the . goods were bought of R. & II. Adams and not of the defendant, the presumption is that that finding is correct, and the question is- whether there was sufficient evidence to warrant the referee in making .that finding,
■ The facts are substantially not disputed. It appears from the testimony of Mn Swift, one of the plaintiffs, that they were in business in Cleveland, Ohio; that they knew L. C. Loisson and that he had been for several years a salesman for the firm of R. & H. Adams, and that they knew it, and they had no knowledge or reason to believe that he was employed for anybody, else. As a matter of fact, it appears and is, not disputed in the case, that,Lois-son, during the .month of November, 1895, and before that, was a salesman for R. & H. Adams, and was not and never had been in the employ of McLean. In the prosecution of his business., Loisson wrote from Chicago to the plaintiffs, to Cleveland, proposing to sell them mosquito netting. That letter the plaintiffs did not produce. Blit- in reply to it, on the twenty-ninth of October, they -wrote to Loisson a letter which is'printed as an-exhibit, ordering the mosquito netting, the sale of which - is the subject of this action.- That order was sent by Loisson to R. & H. AdamSj by whom he was. employed, and was accepted by them and the order was entered on their books. By the "custom of business in the sale of mosquito netting, the bills are. sent as of the. first of April, and á discount is. made from the amount of it of six per cent if the bill is paid in ten days, or five per cent if the bill is paid in. thirty days, and a f urther discount of two per cent to the buyer for each month that elapses between the date of .payment for. the goods and the first of April. This custom of trade'apparently was known to the plaintiffs and. they desired tp take advantage of it.
Hp to this time the defendant McLean had not appeared at all in the transaction!, and nothing was known of him by the plaintiffs so-far as has been made to appear. > Indeed, at that time they seem to have been ignorant of his existence. H the transaction had stopped *103there, there can he no doubt that the only parties to it would have been the plaintiffs on the one hand and the firm of R..& H. Adams, as sellers, on the other. On the first day of November, however, the bill for these goods was sent to the plaintiffs by the firm of R. & H. Adams. This is an undisputed fact in the case. The heading of the bill as sent was as follows : “ M. Wm. Taylor, Son & Co., Cleveland, 0., to Andrew McLean, Dr.” Then follow certain statements which are not material here. The bill was for the amount of the goods sold pursuant to Loisson’s order by R. & EL Adams. Across the face of the bill was a statement: “These goods shipped by R. & H. Adams. All orders to be sent direct to 16 Greene St., New York.” And another statement: “Delivered by R. & .EL Adams.”
A duplicate of the bill was sent to McLean, and the plaintiffs shortly after having received it sent, to McLean the amount which, according to their figures, was the' amount due on the bill, deducting the percentage and the discount for anticipation. McLean claimed that the discount was not correctly figured, and sent to the plaintiffs a telegram to that effect, signed by himself personally, asking for twenty-six dollars more, which they remitted to .him. These two checks were deposited by McLean to the credit of. his company, but, as was testified by several persons, and was not denied, were paid over to the firm of R. & H. Adams, after deducting his commissions for collection.
It was proven in the ease by several witnesses that' McLean had a contract with the firm of R. & H. Adams and other firms engaged ■ in the sale of mosquito nettings, by which he was to collect the bills for two per cent commission, and remit the proceeds, less his commissions, to the persons who sold the goods. This was not denied by anybody and there is no reason to doubt its truth.
It appears as an undisputed fact in the case that in the month of March the firm of R. & H. Adams failed. Upon learning of it Mr. Swift, one of the plaintiffs, immediately went to New York and went to. the place of business of R. & li. Adams to make inquiries about these goods. From there he went to McLean and had an interview with him, and after that this action was brought. What occurred in his interview with McLean has not been made to appear in the testimony. Mr. Swift does not claim that' even at *104that time he advised McLean that he claimed to have purchased the goods of him, or that he made any demand upon him for them. This is substantially all the testimony bearing upon the question of the sale of these goods. Upon this testimony it is not apparent how the referee could have reached any different conclusion from the one he did reach.
When the bill was sent, the transaction was complete. The plaintiffs had dealt with the agent of R. & H. Adams, believing him to be such; had ordered the goods from him ; the order had been remitted to his principals, and they had accepted it. That clearly'made .a contract between them and the Adamses. It is. quite true that the.bill was sent in the name of McLean, but this was done by the Adamses, and it was done for the purpose of enabling him to make the collections. If there had been no explanation of that fact, it would not have made him the seller of the goods which Adams had previously agreed to sell, and it was quite clear that he was not so regarded by the plaintiffs, because Mr. Swift says that when he wanted a delivery of the goods, after the failure of the Adamses, he went directly to their place of business to get it. There is not one word of testimony to contradict the statement that McLean was simply the agent to make these collections, nor is there anything to show that the plaintiffs believed, or had reason to believe, anything different. The evidence is overwhelming to sustain the referee in his findings of fact. The relation of McLean to this whole transaction is a natural one; it is undisputed; McLean was never relied upon by the plaintiffs as the seller of these goods; they did not, so far as appears, know of his existence until the bill was sent, and even then they did not look to him to deliver them.
' But it is said that the contract with the Adamses was transferred to McLean, and assumed by him when the bill was sent in his name, and the money received by hiuj. To this theory there are two.insuperable objections. - In the first place, no' such claim was ever made by the plaintiffs, either before the action was begun, or in the pleadings or upon the trial. It is rather a remarkable fact that the plaintiffs’ witness Swift carefully forbore to say what claim he made on McLean when he visited Mew York to get the delivery of the goods from the Adamses, just as he carefully forbore to say what was contained in the letter which lie, so fortunately for the plaintiffs, *105destroyed, and in which Loisson offered the goods to him. It certainly cannot be presumed when he talked to McLean that he asserted that McLean had become liable upon the contract, and the absence of any such assertion at any time is a very important piece of testimony as contradicting the fact that such liability ever was deemed to have existed. It certainly could not grow, as a matter of law, out of the relations between McLean and the Adamses, because the undisputed fact shows that that was only the relation of collector for pay, and that he paid to the Adamses the' money he received from the plaintiffs. It could come to exist, if at all, only by virtue of an express contract between the plaintiffs and McLean, by which McLean assumed or became liable for the contract of the Adamses. But no evidence was given to establish such a contract. ^Neither is any such contract alleged in the complaint. The plaintiffs stand solely upon the assertion that McLean sold the goods to them as an original proposition, which is utterly false,' and without one particle of evidence to sustain it.
Upon the evidence, and upon the pleadings, the referee could not find any differently from what he did, and the judgment entered upon his report should be affirmed.
Patterson, J., concurred.
Judgment reversed, with costs to appellant to abide event, and new trial ordered before another referee to be appointed on entry of order hereon.