The plaintiff sued the railway company upon an account for goods sold and delivered, and by an amendment, which was allowed without objection, set up an express contract to pay for the goods at the sum named in the account. Such amendment also contained allegations which, as against a general demurrer, would be sufficient to authorize a recovery upon a quantum meruit. The defendant in its answer denied the special contract, and also the • other material allegations in the amendment which were relied on for a recovery. The judge submitted both issues to the jury, who returned a verdict in favor of the plaintiff. The defendant made a motion for a new trial, assigning error upon the admission of certain evidence, and also upon an extract from the charge of the court. The motion was overruled, and the defendant excepted. The evidence rejected was a voucher or recéipt signed by a person not a party to the case, from whom the railway company claimed to have purchased the goods described in the petition. There being nothing to connect this evidence with the transaction under investigation, it was not erroneous to reject the evidence. The charge complained of was simply an instruction that, under the allegations of the amendment, a recovery upon a quantum meruit was authorized. The evidence was sufficient to support the verdict, and we find no reason for reversing the judgment.
Judgment affirmed. All the Justices concur, except Simmons, G. J., absent.