(after stating the facts). This case was submitted to the jury upon the theory that, if Harrington paid the money to Morris & Simpson, and they turned it over to Whitman with the understanding that plaintiff was to occupy the premises, the defendant is liable. Defendant, Hall, was not sworn as a witness, and there is no contr&diction of plaintiff’s testimony that, after plaintiff had informed him what he had done, he assented to it. We think that, under the undisputed testimony in the case, plaintiff was entitled to recover. It is therefore unnecessary to discuss the alleged, errors. On the basis that it was a proper case for a jury, we find no error in the instructions or ruling of the judge.

Judgment affirmed.