It is suggested in answer to the appeal, that the question. to whom the credit was given, was one of the intentions of the parties, as deduced from the facts and circumstances, and that the jury having drawn the deduction that the services were rendered upon the credit of the defendant, their verdict shouid not be disturbed. Where, upon an uncontroverted state of facts, the point involved remains doubtful, or upon undisputed facts inferences may be drawn either way, the question is properly one for the jury, and their finding should be conclusive; in all such cases, the unanimous concurrence of the twelve minds in the jury box is as satisfactory a mode of reaching a right conclusion, as to attempt to work it out by legal deductions or logical reasoning. But in all such cases there must be something in the evidence to found the conclusion upon, and in this case I fail to discover anything showing or tending to show, that the defendant ever did or said anything to warrant the plaintiff in assuming before he went to Groton, and before he performed the operation, that the defendant was to pay him for his services. It would be preposterous to say that a person who brings a message to a surgeon from theattending physician of a patient, requesting him to come and perform an operation upon the patient, is, by the mere delivery of such a message, chargeable with the obligation of paying the surgeon for his services. He is a mere agent and nothing more, unless he communicates the message in such a way, or does, or says something that *378fairly warrants the surgeon, before he undertakes the service, in supposing that he is the person who is to pay for it, and in this respect it can make no difference that the bearer of the message happens to be a brother of the patient.
It is a general principle pervading the law of agency, that one who procures services to be done for another is not himself chargeable as the debtor, unless he omits to make known his principal or erroneously supposes that he has authority, of exceeds his authority, or expressly,- or implicitly engages to be answerable either by direct promising to' pay for them if rendered ; or by doing or saying something which justifies the person who is to perform them, in supposing that the one who applies to him engages to pay for them. The law is too ,;well settled in this respect to make it necessary to refer to authorities, and the direct application of it to the facts now before us may be illustrated by the case to which the appellant has called our attention. (Owen agt. Gooch, 2 Esp., 567.)
The plaintiff was a paper hanger, and the defendant gave him an order for paper, and work to be done in the way of his business in the house of one Tippel, the-plaintiff being informed, when the order was given, that the work was on Tippel’s account, and the entry upon the plaintiff’s book being “Mr. Tippel, by order °of Gooch.” It was argued in that case, as it is in this, that the person for whom the work was done may have been unknown to the plaintiff, but the defendant Gooch was known to him, and that under such circumstances, the work must be deemed to have been ordered on his credit, and that he was consequently liable.
The answer of Lord Kenyon may be quoted as pertinent in its general bearing to the present case. He said, “ if the mere act of ordering goods was to make the party who ordered them liable, no man could give an order for a friend in the country, who might request him to do it,' without risk to himself. If a party orders goods from a tradesman, though in fact they are for another, if the tradesman is *379not informed at the time that they were for the use of another, he who ordered them is certainly liable, for the tradesman must be presumed to have looked to his credit only.* * But whenever an order is given by one person for another, and he informs the tradesman who the person is, for whose use the goods are ordered, he thereby declares himself to be merely an agent, and there is no foundation for holding him to be liable.”
In the present case, the defendant exhibited and left with the plaintiff, the dispatch he had received, and the plaintiff admitted upon the trial that the defendant told him that the patient therein referred to was his brother. He was therefore informed beforehand of the person on whom the operation was to be performed, and the argument of the plaintiff’s counsel upon this appeal, that the plaintiff knew nothing about the defendant’s brother, not even his name, made no inquiries about him or his responsibility, and hence could not have contracted for his services upon his credit, is sufficiently answered by the remark above quoted from Lord Kenton.
This isall the defendant did, except to pay the plaintiff’s fare to New London j but this was after the- doctor had come to the railroad, prepared to go to Groton and perform the operation, and was in itself too slight a circumstance upon which to found an implied engagement to pay the plaintiff for his services.
But the case is not only destitute of any act upon the part of the defendant which would justify the plaintiff in assuming, when he consented to go, that the defendant was to pay him, but his own acts then and subsequently show that it was the patient, and notdefend, ant that he looked to for the payment of his bill. Before leaving he consulted the directory and found that the person who called upon him was Mr. Amidon, the hatter, when he, he says, took it for granted that he was dealing with a responsible party; but that the one whom he took it for granted was *380a responsible party was the patient upon whom he was to perform the operation, is shown by his own statement upon the trial, that when he reached .Groton, he u was taken rather by surprise, to have been sent for so far by a man living upon a moderate scale,” but “ took it into consideration that New England people should not be taken by their appearance,” a presumption in the application of which he may still be right, for there is nothing in the case to show that the defendant’s brother was not a responsible person, and able to - pay the amount which the plaintiff claimed. All that the case shows is, that he complained that it was too large, and that he offered through his brother to pay a smaller sum.
All the plaintiff’s subsequent acts like the preceding, show that it was the person upon whom the operation was performed that he looked' to for the payment of his bill. He made it out to him, and sent it to the brother here in New York, because, to use his own words, he supposed that was “ the proper channel to send it to.’’ That he considered the defendant simply as a channel through which to send the bill to the debtor, is show.n by the fact, that after eight days had elapsed without its being paid, he sent a letter, not to the defendant, but to the patient, and advised him that he waited a reasonable time without hearing from him, and in the next letter of December, 14, he writes to the patient, u I received your last proposal (the $150,) with no little surprise, I am not disposed to conform my terms to your ideas,” and he ends by hoping that there may be no further delay in settling. All this conclusively shows to whom the credit was given and by whom, from the beginning, he supposed he was to be paid.
In the question, which arises so frequently under the statute of frauds, to whom was the credit given in case when the point is, whether the promise was collateral to answer in default of another, on an original undertaking, great weight is attached to the fact that the plaintiff has *381charged the debt upon his books, or made out the bill, to the person who received the goods, to show the promise of the defendant was simply collateral, and therefore, void for not being in writing. (Anderson agt. Hayman, 1 H. B. L., 121; Dixon agt. Frazee, 1 E. D. Smith, 34; Sarson agt. Wyman, 14 Wood, 246; Broome on Statute of Frauds, § 198). ;
It is not absolutely conclusive, as it may be shown, that it was done by mistake. (Loomis agt. Smith, 17 Conn., 115) ; but it is a most material, and without explanation, a controlling circumstance; for as my former colleague, Judge Woodruff remarked in Dixon agt. Frazee, suppose the plaintiff thereby puts his own construction upon the agreement. Such was the case here. The plaintiff made out his bill against the defendant’s brother, and nothing appearing to show that this was done by mistake, or any explanation given why he did so. The same construction would be given to so material a circumstance as was given in the cases above quoted, so that if even the defendant had promised the plaintiff, the understanding would be collateral and void under the statute, not being in writing.
After going carefully over the evidence, I can find nothing in it to support the verdict, and in my judgment it, should be set aside.