majority"> Endicott, J.

The plaintiff seeks to recover against the estate of Charles Dustin for certain wood sold by him to Edward Foye, on the ground that Foye was the agent of Dustin in purchasing the wood, which fact was not disclosed to, him at the time, but as soon as ascertained this action was brought.

By, the contract between Foye and Dustin, Foye was to make bricks, and Dustin was to furnish all the necessary materials for making, except the clay. The contract provides the manner in which Foye shall be paid for his work, and the bricks, when finished, were the property of Dustin. It is not denied by the defendant that wood is a necessary material in the manufacture of bricks, and it was the duty of Dustin, by the terms of the contract, to supply it. After the contract was made, Foye bought the wood from the plaintiff; it was all consumed in burning the *543bricks, which fact must have been known to Dustin, as he wag frequently in the yard observing what was done. It was a material he was bound to furnish; it was consumed in making his bricks with his knowledge. Foye had a duty to obtain it, and whether Foye acted as his agent in buying it of the plaintiff was a question for the auditor to determine on the facts before him, the substance of which is stated in his report. The report was therefore proper evidence for the jury on that branch of the case.

The second question argued at the bar we are not called on to decide. It was contended by the defendant, that, assuming Foye to have been the agent of Dustin in the purchase, yet that Dustin was relieved from liability, because he paid Foye for the wood before the plaintiff brought his action, or knew that Dustin was the principal in the transaction. But that question can arise only when it is ascertained as a fact that such a payment has actually been made, and in good faith. The auditor does not say in his report that Dustin had paid the money to Foye for the wood, but that Foye gave him a receipted bill for the same. This receipt was given by Foye to Dustin on November 12, when the settlement was made for the bricks, and for some reason dated back to October 27. Whether the auditor found that the money was actually paid, or th&t it was a mere color-able transaction, does not appear. And we cannot say, as matter of law, that, in passing upon this question, he was bound to find that it was paid, merely on the evidence furnished by this receipt. Exceptions sustained.

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