This was a suit upon an open account, bruoght by John *250M. Hill against A. H. Fleming, with two verdicts for the plaintiff, and now for the second time before this court. The defendant, by his pleas, first, denied the contract as alleged; second, that if he made it, he did it with the intention of re-selling the liquors bought to the firm of Morgan & Printup, and having no license to sell, he was aided by the plaintiff in contriving to make the sale for the purpose of defrauding the government of its revenue, and therefore the contract was void; third, that if he was liable at all, it was a collateral liability to that of Morgan & Pi'intup, and not being in writing, it was not binding upon him. The issues thus presented were found against him by the jury, and he sought a new trial on account of the errors alleged to have been committed by the court and juxy, which was refused and he excepted.

I. The questions of fact before the jury wei-e, first, to whom were the goods sold, to Fleming the defendant, or were they sold to Morgan & Printup? Second, if sold to Fleming, was there any intention to re-sell them by anew contract to Morgan & Printup in such way as to defraud the government of its x-evenue, and was he aided in that intention by the plaintiff? and third, was the contract with the plaintiff an original or collateral undertaking to pay for the goods sold ?

The testimony of the plaintiff Hill, believed by the jury, was quite sufficient for them to have found that the goods sold wex-e sold to the defendant himself, and not to the firm of Morgan & Printup; or if upon the other hand they had disbelieved Hill, and chosen to have believed the defendant, Fleming, then his testimony was also sufficient to have authorized their finding that the sale was one to Moi'gan & Printup and not to Fleming. The entry on the books of the plaintiff, the shipment of the goods direct to those parties, as well as everything which transpired, was but evidence to ascertain where the truth lay as to the x-eal contract. Charging the goods on the books of the plaintiff to Morgan & Printup was prima facie evidence in favor of the defendant, but it was not conclusive, the *251plaintiff could explain and rebut, and if the jury believed him then they could so find.

The real -question being whether the- sale was made to-Fleming, or to Morgan & Printup, if to him he was liable, if to them he was not, unless his agreement to pay had been in writing. So the finding of the jury on the first plea necessarily disposed of the last.

2. Upon the second plea, under the proof submitted, and as found by the jury, it simply shows a purchase by Fleming with a delivery to Morgan & Printup, and is, in fact, but one sale, and that to Fleming, with directions to ship the goods to the other parties to whom he had agreed to deliver them. The plea set up could not be sustained by such proof, nor was the charge asked for authorized by the same ; the refusal of the court to give it, therefore, was not error.

As to the request to charge on the collateral liability of Fleming upon a promise to pay the bill for Morgan & Printup, there was no claim by Hill that any such promise was ever made to him, none by Fleming that he had ever made such promise, and none by any other witness that he had, so that, to have charged the jury as requested, would have been putting to them matter not in the proof, and therefore would have been error.

3. Another ground of complaint in the motion for a new trial was the admission of the testimony of W. R. Hill, over the objection of defendant’s counsel. The issue on the first plea was whether the defendant bought the goods himself on his own account, or whether he bought thém for Morgan & Printup. This testimony was offered to show that on the same day the defendant went into the store of witness to buy such articles as were sold, to fill an order for parties with whom he was dealing, but was to pay for the same himself. This testimony embraced the facts that he wanted to buy such goods as were sold by the plaintiff, that it was on the same day, and was to fill an order, which he wanted to fill by the house that *252would allow him to make the greatest profit, and for which he was to pay himself. This testimony supported the plaintiff’s theory of the case and was admissible.

4. The objections to the answers of the witness, Culberson, are not entirely without merit, but are not sufficient, in our judgment, to have excluded them. In looking through the whole case, we think that it was fairly submitted to the jury, and that their verdict having sufficient proof to authorize it, we will not disturb their finding.

Judgment affirmed.