The complaint does not to me appear to claim damages only from the non-payment of plaintiff’s note by the defendants, after they (the defendants) had promised to pay that note. If that were all, the plaintiff, under the case made, would not be entitled to recover what he had expended in paying his own obligation, but only such damage as the plaintiff would sustain, if any, from defendants, not paying. The complaint seems to me to be in the nature of an action to recover an amount deposited with defendants by plaintiff. It avers that defendants did not, and plaintiffs did, pay the note; but it does not confine the claim of damages to the consequences of that. It proceeds: “ Whereby, and by reason of the premises, the plaintiff was damaged in the sum of $2,523,07.” The premises include the averments as to the deposit.
Although the verdict was for a greater sum than the complaint asked judgment for, I do not think this calls for a reversal. The evidence was the same as it would have been if the complaint had demanded judgment in a sufficient amount. There was no objection taken on the ground of the form of the complaint. The objection taken to the charge of the court upon the subject of the amount the plaintiff should recover, referred, apparently, to the merits of the controversy as exposed by the testimony.
I do not find that there was any error in admitting the record of the action by the assignee of the defendants against Matthieson & Doolittle. The judgment obtained in it had been paid, as testified by one of the defendants. The claim was identical with the counter-claim in this action. The reply to the counter-claim was incontrovertibly sustained. The plaintiff, under the facts of this ease, was not liable, after the payment of the judgment, if defendants’ view of plaintiff’s liability is assumed to be correct. On the other hand, the judgment did not determine, as between the parties to this action, that defendants were liable for the amount of the so-called “ deposit. ” The defendants’ assignee, in the action in question, had applied the amount to payment of the claim made against Matthieson & Doolittle. The present plaintiff was not party nor privy to the action, and, as to the claim for the deposit, could use the record, in connection with other facts, only to show something in the nature of an admission that plaintiff was not the purchaser.
I agree .with Judge Freedman that, on the testimony, the verdict of the jury should have been taken as requested by defendants on the issue in the case of plaintiff’s liability for purchase made after March 5,1884, by Matthieson & Doolittle, of the defendants. There was evidence which would have sustained a finding of fact by the jury that plaintiff had agreed to pay for such purchases. The answer, as a defense, had averred that what I term the “deposit” had been applied to the plaintiff’s account for goods purchased from the defendants by the plaintiff under the agreement hereinafter set forth. The agreement was afterwards set forth in the counter-claim. The case, as made upon the trial, and as argued on the appeal, did not turn upon any difference there might be between the purchase being made by the plaintiff, or being made by Matthieson & Doolittle; the plaintiff guarantying his purchase. I will advert to one piece of testimony on the subject of the liability of plaintiff for purchases made after March 5th. Plaintiff was a witness in his own behalf. He testified that on March 5th he had a settlement with defendants. The latter presented a bill whicli contained their statement of what was due by plaintiff on account of the purchase of goods by Matthieson So Doolittle *309made before March 5th, and the witness paid the balance. He said that the bill he then presented in court was that bill. In the case that bill appears to have been: “To amount of statement received, $3,989.78. Matthieson & Doolittle. Dated May 3. 4 mos. 10 per cent, discount on amount,” etc. The bill was dated August 1, 1884, and on its face applied the amount deposited to payment of defendants’ claim. The statement referred to was after-wards offered in evidence, and appears to have detailed purchases by Matthieson & Doolittle from February 1st to June 16th, amounting in all to $3,989.78. All this was so contrary to plaintiff's position that it may be surmised that the printed case is incorrect. That surmise cannot be entertained, against the face of the record. The judgment and order appealed from should be reversed, with costs to abide event; a new trial being ordered.