delivered the opinion of the Court [after stating some of the facts]. It is perhaps not very material in what form the plaintiff may have made the charge in his books ; his right to recover must depend upon the actual state of facts, without regard to the form of the charge. Such form may often be important as evidence to show whom the party considered liable at the time of giving the credit, which is sometimes a material fact in such cases.

In order to recover in the present case, it is necessary to show, either that the contract was made with the defendant, or that the work was done on his credit, or that it was procured by his agent on his account, and that it went to his benefit.

Though there may be some doubt upon the evidence, yet when taken together and compared, we think that it supports neither of the propositions. Jones was the agent for Rowley, and acted only for him. Suppose the articles had been delivered on the order of Rowley, it would be the same as at present. If the plaintiff did not choose to deliver the articles on the credit of Rowley, he should have ascertained whether any other person was responsible, and if not satisfied, might have refused altogether. The evidence, we think, shows that the articles were furnished on the credit of Rowley alone.

Then the question recurs, whether Rowley stood in such a relation to the defendant, that the latter is bound by his acts. It not unfrequently happens, that one on whose credit a party supplying articles did not at all rely, and who indeed was wholly unknown to such party, may be responsible ; as in case of a dormant partner, or undisclosed principal. If this stood merely upon the parol evidence, there would be considerable ground to maintain, that the defendant admitted that Rowley was his agent. But the true relation between Rowley and the defendant is disclosed by the indenture of September 22, 1829. From this it appears, that Rowley was the lessee of the coaches, horses and stage property, for a term of years, having the possession and right of possession, *331carrying on the business for his own account and at his own risk, under stipulations to keep the whole in good repair, and to replace that which should become worn out or deteriorated, and that the defendant had no power to take possession, unless Rowley should fail in the performance of the stipulations on his part, or some of them. The condition of the lessee, Rowley, then, was that of a principal and not of the agent of the defendant, both as to the expenses of the line of stages, and as to repairs. The only circumstance which could occasion doubt is, that by the terms of the contract, all articles to replace those which were worn out, were to be purchased in the name of the defendant. But when the relation of the parties is considered, and the purpose of this provision, we think it will not alter the case. It is like a stipulation that' a party will purchase articles at his own cost, and forthwith deliver them to a third person for his own use and benefit. If a purchase is made in good faith, the party for whose use the goods are purchased is not responsible ; the purchaser is not his agent. So if a lessee of real estate were to covenant to replace fixtures, and pursuant to such agreement should purchase articles on credit for the express purpose of replacing fixtures for the use and benefit of the landlord, on being annexed they would become part of the freehold, and go to the use of the landlord, yet the latter would not be responsible for them. We think therefore that these articles were purchased of the plaintiff by Rowley on his own credit, for his own account, and that the defendant did not stand in such a relation to Rowley, as to be responsible for his acts.

And when the actual relation in which the defendant thus stood to Rowley is explained and shown by the contract between them, it is reconcilable with the parol testimony. In a certain sense Rowley was the agent of the defendant. The latter, by his contract with Robbins and others, was responsible for carrying the United States mail. He had stipulated with Rowley to do this on his behalf, and to indemnify him. If Rowley should fail to do this, the defendant, on his own obligation, would be bound to do it. To this extent, therefore, he stood responsible for the doings of Rowley, the latter not being an agent but a sub-contractor, for whom the defend*332ant was guarantor. This explains the conversation with Bar ker. The defendant was in fact the general owner of the property, and was contractor for carrying the mail. Cotteril, who was present at the same conversation, states, that when Emerson said that he owned the property and that Rowley was his agent, he said at the same time, that he was personally bound to carry the mail, that the property was bought by him for Rowley and leased to Rowley, and if any thing was made by the line, Rowley was to have'it. This is perfectly consistent with the relation of the parties, as shown by the indentures. It is true that in a former deposition the witness did not state the latter part of this conversation ; but he states the reason to be, that he did not know that it was material, that he was not interrogated respecting it, nor asked to state the whole conversation.

Plaintiff nonsuit.