Upon the evidence reported, I think it should have been submitted to the jury to find whether there was any privity, that is, any contract, tacit or express, with respect to making the shoes, whereby *Page 568 it was mutually understood that the defendant was to pay the plaintiff therefor. I am therefore of opinion that the verdict ordered for the plaintiff must be set aside, and a new trial granted.
SMITH J. No objection was made to the reception of the referee's report. No question, therefore, arises as to its being evidence to be considered by the jury in support of the plaintiff's claim; but, so far from the other evidence introduced tending to show any privity of contract between these parties, it seems to me it tended directly to prove that there was no such contract; and if there had been no report in evidence, I think the defendant would have been entitled to a verdict. The whole evidence, therefore, should have been submitted to the jury; and for error in this respect the verdict must be set aside, and
A new trial granted.