Majority
Headnote
Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for new trial.This is an appeal from a judgment entered upon a verdict and from an order denying a motion made upon the minutes^ to aside the verdict, and for a new trial, upon the ground that the verdict was contrary to the evidence, and against the weight of evidence, and contrary to the law.
This action was brought for plumbers’ materials alleged to have been sold and delivered by the plaintiff to defendant.
The complaint alleged a sale to the defendant, and that the purchase was made through Pearse and Thornton, his agents, who were authorized to buy the materials for his account.
The answer was a general denial.
At the close of plaintiff’s case, defendant moved to dismiss the complaint on the ground that the evidence was insufficient to sustain the claim made in the pleadings for goods sold and delivered to the defendant.
The court denied the motion, and the defendant excepted.
We think the trial justice erred.
There was no evidence to go to the jury showing a sale and delivery of any goods to the defendant, or that Pearse and Thornton had any authority to act for defendant, and the motion to dismiss the complaint should have been granted.
The judgment appealed from must be reversed, a new trial granted, with costs to appellant to abide the event.
Ehrlich, Oh. J., concurs.