majority">Watson, J.

This action is general assumpsit. The plaintiff seeks to- recover $268.03, which he paid to the defendant on December 16, 1896. The plaintiff claims to recover on the ground that the money was obtained of him by the false and fraudulent representations then made to- him by the defendant.

In the years 1891 and 1892 the plaintiff was agent for Gray, Howe & Steb-bins, a commission lumber firm- of Boston. This firm furnished, through the plaintiff, certain money to the defendant to stock his mill in Wolcott Village, and another mill in North Wolcott Village; the purchases for the defendant were either made or approved by the plaintiff; and generally he paid the bills directly to the parties of whom the purchases were made; but some money was furnished to the defendant to- hire help, furnish machinery, tools, etc. The money so advanced by the firm, through the plaintiff to- the defendant, was credited on the books o-f the firm to the plaintiff, and was to be charged to- the defendant in settlement. *223The defendant had the benefit of the entire proceeds of the lumber handled by him and .sold by the firm. The items in dispute in this case were made up of some hemlock, spruce, and hardwood lumber, purchased by the plaintiff of the defendant in the course of these transactions, aggregating in value $146.18, and a circular saw for the North Wolcott mill, $60. These two- items with interest to the 16th day of December, 1896, make the sum which the plaintiff claims was fraudulently obtained of him by the defendant on the day last named. The lumber composing the above item was sold .and delivered at a mill operated by Gray, Howe & Stebbins in Stowe. The defendant had nothing to' do with the operation ■of that mill. The saw was purchased for the mill at North Wolcott. This was one of the mills that was stocked by the •defendant with the assistance of the plaintiff, and the lumber therefrom was all shipped by the defendant to Gray, Howe & Stebbins. The defendant admitted in the trial that he knew ■of the plaintiff’s agency for that firm in connection with all ■of the business above mentioned, that is, he knew that the plaintiff was acting as agent for that firm, and did not know ■of any business that he was transacting for himself in those localities. The defence was that the goods were sold directly to the plaintiff, and not to Gray, Howe & Stebbins. The ■defendant also admitted that if the goods were properly ■chargeable by him toi the firm in the first instance, then1 he had had his pay; and he only testified with reference to the lumber and saw that he sold them to the plaintiff. He did not testify that the name of Gray, Howe & Stebbins was mentioned in the transaction.

The plaintiff’s evidence tended to show that he purchased both the lumber and the saw for the firm, but that he told the defendant at the time of the purchases that he would see that the defendant got his pay for them.

*224Thus the record shows that in the purchase of the lumber and the saw in question the plaintiff was acting as the agent of Gray, Howe & Stebbins, and that the defendant then knew it. In law the known principal and not the agent is the purchaser. Hence the plaintiff’s third request should have been complied with.

Since upon the evidence and the defendant’s admissions, Gray, Howe & Stebbins were the purchasers as a 'matter of law, the plaintiff’s fifth and seventh requests were properly refused; for they were based upon the supposition that the jury were to find as a fact whether they were the purchasers or not.

It was proved that all matters between Gray, Howe & Stebbins and the defendant were closed by a “jump” settlement made in1 November, 1895. The defendant showed by Mr. Stebbins, a member of the firm, that there was no' mention of these items' respecting the saw and the lumber on the current books of the firm, so far as he had been able to< determine by examination. But inasmuch as the defendant knew the plaintiff purchased this property for that firm as his principal, it was immaterial to the defendant’s interests in this case whether these items or transactions appeared on the firm’s bo.oks or not. Under these circumstances the plaintiff was entitled to a compliance with his eighth request.

Since the record shows not only that the defendant had knowledge of the plaintiff’s agency in the transactions relating to the saw and to the lumber, and consequently knew that Gray, Howe & Stebbins were the purchasers of the property, but alsb' that he was paid by the firm before he obtained of the plaintiff the money here sought to< be recovered, the question of voluntary payment is not involved. The plaintiff’s evidence tended to show that notwithstanding the defendant had been fully paid for the property, he then told the plaintiff that the firm had never paid for the saw or the lumber.. And as *225regards the lumber, the defendant admitted that he so stated. The plaintiff had no knowledge to the contrary, and relying upon the defendant’s representations in this regard, paid him the money. Instead of there being a debt against Gray, Howe & Stebbins voluntarily paid by the plaintiff, it appears by the record that the defendant obtained the plaintiff’s money by fraud and without consideration. Under these circumstances it makes no difference whether the plaintiff guaranteed the payment for the lumber and the saw or not, hence he was entitled to a charge in compliance with his ninth request. When money has been obtained by one person from: another by fraud and without consideration, it may be recovered back under the common count for money had and received. 2 Greenl. Ev. § § 120, 122; Cory v. Freeholders of Somerset, 47 N. J. L. 181; Burton v. Driggs, 20 Wall. 125, 22 L. Ed. 299.

At the time the money in question was obtained by the defendant he executed the paper marked “Plaintiff’s Ex. A” and delivered the same to the plaintiff. It is in form a receipted bill from himself to Gray, Howe & Stebbins for '“merchandise, the pay of which is guaranteed by George L. Johnson” (the plaintiff), then giving the items for the lumber and the saw, with interest added to December 16, 1896. It further shows that the bill was “paid by settlement with George E. Johnson” on the day last named. The evidence was somewhat conflicting as toi just what was said by the plaintiff and the defendant concerning the purpose of this paper at the time it was executed. At most it was but a piece of evidence to be considered with the other evidence and the admissions in the case. There was nothing- about it which required the court to call the jury’s special attention thereto, and to’ ignore the plaintiff’s tenth request was not error.

*226Judgment reversed and cause remanded.

Powers, J., having been of counsel, did not sit.

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