Appeal from the Superior Court of Law of Jones County, at the Spring Term, 1851, his Honor Judge Caldwell presiding.

This is assumpsit to recover the price of a flat. The declaration contains three counts. First, in a special contract to indemnify; second,' for money paid to the use of the defendant; third, for work and labor done.

The facts, as they appeared on the trial, are as follows : Sometime in the winter of 1846, the defendant employed the plaintiff to have a flat built for him at New-Berne, by the first of May of that year: that the plaintiff, in pursuance thereof, made a contract with Roberson & Howell, Ship-carpenters, to build the same by the time mentioned, large enough to carry two hundred and fifty barrels, at and for the price of two hundred and twenty-five dollars, telling the said Roberson and Howell at the time, that it was for the defendant, and that he resided in Wayne. And the said Roberson & Howell testified that they built it accordingly, and of the proper size, and had it ready to launch by the 15th of April, 1846, and on the last day of the said month launched it, where it still remains. They also testified that they djd not know the defendant, Smith*: that they did not execute the job upon the faithjof being paid by him: that, when the work was done, they charged it to th’e plaintiff, on whom they relied, and, upon their application, he paid them in the spring of 1848. And they further stated, that they did not tell the plaintiff in express terms that they would look to him for the payment, when the said contract was made. On their cross examination, they stated that they allowed the plaintiff to bring a suit in their names against the defendant for the price of the flat in question : that it pended for some time and terminated in a non-suit, before this suit was brought; and that the plaintiff, on being urged to do, so, paid for the flat before the non-suit aforesaid. It also, appeared by the testimony of a witness, that he had called on the defendant, in Wayne, before suit in the names of said Roberson & Howell, and demanded payment of him as well in behalf of said parties as in behalf of the plaintiff: that he refused to make payment, alleging that the flat was not finished within the time agreed upon. It did not appear that any other demand had been made upon the defendant.

It was insisted for the defendant that the plaintiff could not recover; for that there was no evidence of a special contract; for, that the plaintiff made the contract as an agent, declaring at the time the name and residence of the defendant; for, that as the payment made by the plaintiff was voluntary and without demand on his part, he could not thereby make the defendant liable.

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