This was an action of assumpsit, to recover the price of goods sold and delivered by appellees to appellant.
The defendant below pleaded the general issue, and, by agreement of parties, the cause was tried by the court without jury, the issues were found for the plaintiffs, and damages were assessed at $473.11, the full amount claimed, *399and, after overruling a motion for a new trial, judgment was given upon the finding.
The defendant asserted in the court below, that, in the purchase of these goods, he acted as the agent of one Bigelow, and that the credit was extended to Bigelow, and not to defendant.
We see no error in the rulings of the court below, touching the admissibility of evidence, and the only remaining questions which can be said to be presented by the assignment of errors are, first, whether the finding of the court below is sustained by the evidence; second, whether the damages were correctly assessed.
The first question resolves itself into an inquiry as to the weight of evidence, and we are of the opinion that we ought not to reverse the finding of the probate court, unless manifestly erroneous.
In determining the relative credit to be given to the testimony of conflicting witnesses, so much consideration is due to the manner and bearing of each under examination, and their apparent intelligence and candor or prejudice, that a court of review, to which all these things are hidden, ought not lightly to reject the opinion of either court or jury, before whom the witnesses of both parties have been subjected to both examination and cross-examination. So the rule stands upon grounds of reason, and authorities in support of it are not wanting. Webster v. Vickers, 2 Scam. 295 ; Harman v. Thornton, id. 351.
With this rule controlling us, we cannot say that the court below erred in preferring the testimony of the witness Mahar, sworn on the part of the plaintiff, to that of the •defendant who testified in his own behalf. These were the only witnesses sworn who, so far as appears, had any knowledge of the transaction at the time of its occurrence. We find no difficulty, however, in justifying the finding of "the court below, even though the testimony of the defendant be accepted as a true relation of the transaction.
It is admitted by the defendant that he bought and received the goods to the amount for which the recovery was *400liad ; but it is claimed by Ms counsel that, in tMs purchase, he acted on behalf of Bigelow, and as his agent. Upon this point the testimony of the defendant is, and we adopt his own language, “that he bought the goods for John Bigelow, and delivered them to him.”
He nowhere states that he was ever authorized by Bigelow to purchase these, or any other goods, on his account, nor whether he delivered these goods to Bigelow as belonging to him, or whether the delivery was in pursuance of a sale by himself. The law is well-settled that, where one is sought to be charged for an act done in pursuance and discharge of an alleged agency, the burden is upon him to show the fact of the agency, and that the transaction upon which the action is based was in pursuance and an ostensible discharge of that agency.
And though we should reject the testimony of Mahar, as to the subsequent declarations of the defendant, that he had sold the goods to Bigelow, and accept the fact of Bigelow’ s having received the goods as an acknowledgment or ratification of defendant’s assumed agency, still this, according to the authorities, would not suffice to bar this action.
It must appear that there was an original appointment subsisting at the time of the transaction. Rossiter v. Rossiter, 8 Wend. 494.
It is said, that, by the testimony of Mahar, it appears that defendant and Bigelow were partners. Even if we accept the statement of the witness, as intended to have reference to this particular transaction, still it cannot, we think, defeat this action. Non-joinder of defendants is never a bar, but only matter in abatement.
We must then, upon this evidence, concur in.the finding of the court below, that Tiger was originally liable to the plaintiffs, and, if liable originally, he of course remained so unless discharged by the subsequent act of the plaintiffs.
Upon this point it appears by the testimony of DeLappe, that between Christmas, 1868, and January, 1869, he, acting for the plaintiffs, presented to Bigelow an account, bearing *401date in June previous, and in which, under date of May 27, is charged balance bill, P. Tiger, $273.11.
It is claimed in argument, as we understand counsel, that hereby it appears that Bigelow and not Tiger was responsible for the balance; but this item seems to us to establish the certainty of this, that is to say, that in the first instance at least credit was extendedlo Tiger and not to Bigelow, and the plaintiffs, by charging the amounts over to Bigelow, have not released the defendant, unless this change in the accounts was made with intent to release him and upon a consideration.
If Bigelow had agreed to pay the demand, and the plaintiffs had agreed to accept him as their debtor in lieu of the defendant, the arrangement would have .been an effectual one ; but no act or declaration of a creditor, however express, ought to be accepted as a release of his debtor, or as an acceptance of one in substitution for another, unless the person to be substituted assent to the arrangement, or there be some other consideration for the release or substitution, or unless it be evidenced by writing under seal, so importing consideration. We fail to find in this record any evidence that this change in the accounts was made with intent to discharge the defendant, that Bigelow ever assented thereto, or that there was any other consideration therefor. As to the intent of plaintiffs it rather appears that this item was inserted in Bigelow’s account in pursuance of defendant’s request, spoken of by Mahar, and out of complacency to defendant, to relieve him of the necessity of collecting from Bigelow. If the intent had been to discharge the defendant, whether Bigelow paid the amount or not, defendant would have been credited with the amount charged to Bigelow; but this does not appear. An account was rendered to Bigelow it is true, with this balance set down therein against him, but whether he assented or objected to this item was not shown. It rested upon the defendant below to establish affirmatively that Bigelow assented to the arrangement.
We are of opinion, therefore, that the probate court did *402not err in finding this issue for the plaintiff. But in the assessment of damages we think there is error.
The bill of goods sold amounted originally to $473.11. The defendant testifies that he paid plaintiffs at the time of the purchase $200, which, he says, was upon Bigelow’s account. In the account rendered to Bigelow, and before adverted to, plaintiffs charge Bigelow with the balance of Tiger5 s bill, $273.11. It is true this charge is under date of May 27, while the transaction in question appears to have taken place on the 28th; but it does not appear that defendant ever had any other bill with plaintiffs than that for these particular goods. The bill rendered Bigelow is proven to be in the handwriting of one of the plaintiffs, and, from all the circumstances in proof, we are compelled to believe that this charge in the account rendered to Bigelow refers to the identical transaction iu controversy, that the $200 paid by Tiger, at the time of the purchase (which, it is true, he testified was paid on account of Bigelow, but which appears, nevertheless, to have been his own money and not Bigelow’s, for he testifies that Bigelow repaid him part of it), was credited by plaintiffs to this account.
These deductions seem to us inevitable from the evidence contained in the record, and are fortified by the omission of the plaintiffs to explain in the court below, as they might have done by their own testimony, whatever is doubtful.
For the error in the assessment of damages, therefore, the judgment of the probate court is reversed, and the cause will be remanded to that court, with directions to enter judgment upon its finding for the sum of $273.11.
Reversed.