¶1This is an appeal from a judgment entered on the verdict of a jury, and the action is for the sale and delivery of goods.
¶2The defendant claims that certain payments were made which, if applied to the defendant’s indebtedness, would leave a balance of $186.87, which balance the defendant admitted he owed. »
¶3The defendant proved by the plaintiff’s own witness, Peterson, who had kept the books, that the aggregate purchase of merchandise by the defendant from the plaintiff was $770.79. The defendant claims that the payments made to the plaintiff aggregated $583.42. These payments, if made, were all made subsequent to the purchase of the store by the defendant, and were paid out of the proceeds of the defendant’s business.
¶4Plaintiff’s witness testified to various payments, aggregating $396.20, having been made on Smith’s account, and covering a period of time the same as that of the plaintiff’s statement of merchandise sold, and no credit or mention whatever is made of these payments.
¶5If there ever was a case where there was a positive and continued conflict of evidence on the material issues, this was one. It Avas purely a question of fact, and certainly required the jury to settle and determine the many contradictions in the testimony.
¶6They have found for the plaintiff, but in a smaller sum than claimed by him. Where such appears, and there is any evidence to support the findings of the jury, their verdict will he sustained.
¶7The trial justice in his charge fairly submitted the questions of fact to the jury, and excepting one request, no other was. asked by plaintiff, nor was any exception taken to this-charge.
¶8*574It is too late now for plaintiff’s counsel to complain, to use his language, as per his brief, that the court did not seem to be able to grasp the situation and charge the jury, since had counsel grasped the situation he could have requested the court to charge any other proposition of law which might have occurred to him, and, if proper, I have no doubt the trial justice would have so charged.
¶9We must dispose of this appeal on the case as presented', and not on what ought to have been or what might have been.
¶10The defendant would be bound by the acts of Peterson only so far as authorized, or in the line of his authority, and where Peterson paid his own personal debts with the money belonging to his principal, without his authority, the third person, the plaintiff here, could not retain such moneys, but must return them or credit the defendant with the same on the general account.
¶11The jury have believed this to he the state of facts, and have, therefore, credited these ■ amounts and found a balance due the plaintiff.
¶12While the evidence is very conflicting, we find no error on the part of the trial justice, and judgment should be affirmed, with costs.
¶13Uewbuegeb, J., concurs.
¶14Judgment affirmed, with costs.