Wells, J.
From the previous course of business between the parties, and the requests to have coal, sold to these defendants, sent to the railroad “in long tons and not in short tons,” we think the question whether the buyer and seller had, before the delivery of the coal sued for, mutually agreed to waive the provisions of the act requiring it to be weighed by a sworn weigher, was properly submitted to the jury as a question of fact. Gen. Sts. c. 49, § 187. St. 1865, c. 191, § 5.
The right of the defendants to avail themselves of a set-off, growing out of a previous transaction, depends upon the question whether, in that previous transaction, their contract was with these plaintiffs, or with Sinnickson & Co.
That the plaintiffs were engaged in selling coal, and had a place of business in Boston, and that Fowle and Moseley were their agents there, were facts not in dispute. From the testimony of the defendants it would have been competent for the jury to have found that an oral agreement had been negotiated with Moseley, for the sale of three hundred tons of coal by the plaintiffs to the defendants; by the terms of which the price, then fixed, was to be reduced if there should be a fall of price in the market before the end of February. If the coal was delivered and the acceptance given under such an agreement, the defendants, having paid their acceptance for the full price first fixed, would be entitled to maintain, in this mode, their claim for the amount so overpaid.
[205]*205The plaintiffs contend that the coal was delivered upon the written order signed by the defendants ; and that that writing constituted a contract with Sinnickson & Co., in which all previous oral negotiations were merged. The writing would not of itself have that effect, because, by its terms, it was not to be binding unless “ accepted in writing by the shipper,” and it does not appear to have been ever so accepted.
But the result would be the same, if the defendants, after signing such an order, received and accepted the coal sent in pursuance thereof, knowing or understanding that in doing so they were dealing with another party than that with which the original oral agreement was made.
It was material therefore for the defendants to show that in the whole transaction they supposed, and might reasonably suppose, that they were dealing exclusively with the plaintiffs. They offered evidence to show that the order was filled out by Moseley for them to sign, “ under this agreement ” previously made orally between them; and that they supposed Sinnickson & Co. to be “ the shipping agents of the plaintiffs.” The order itself is not inconsistent with that relation.
Upon this question, the bill of lading, the regularity and genuineness of which was not questioned, had some bearing. It was received at the time of receiving the coal in execution of the contract. We think it was competent as a part of the whole transaction, and should have been admitted.
If Sinnickson & Co. were the general agents of the plaintiffs for the shipping of their coal from Philadelphia, as indicated by the headings of the letters put in, and of the bill of lading, and the coal was forwarded and the acceptance received by them in that capacity, then the excess of the draft, over and above the price to which the coal should have been reduced in accordance with the agreement upon which the order for its delivery was given, would be money received by these plaintiffs, and a proper subject of reclamation and set-off in this action.
But if Sinnickson & Co. were an independent party, and sent their own coal as a sale from themselves upon an order addressed to them, and drew for the price and received payment of their [206]*206drafts in their own right as principals, whatever liabilities these plaintiffs might incur to the defendants upon the original oral agreement, they could not be held to have received the money paid to Sinnieksoti & Co. upon their draft, and therefore would not be liable for that as a set-off in this action.
The facts do not appear to have been developed in this direction at the trial. The propositions upon which the defendants asked instructions from the court would not have aided them, if instructions had been given as asked. They were not adapted to the real issue, and were therefore properly refused. Even if the plaintiffs were bound upon the original executory contract,— either on the ground that they were estopped by the representations “ that they were the only parties who could sell the coal,” and “ that they were the sellers ” in the proposed contract with the defendants; or on the ground of “ not disclosing that they were acting as agents of other parties,” — and were liable to the defendants for breach of the contract so made, yet such liability would not avail the defendants in this action. To maintain their set-off, it was necessary, not merely to show that the original contract was such as to be binding between these parties, but also that in its fulfilment the plaintiffs received money from the defendants in excess of the amount to which the contract entitled them; or that the draft, which the defendants accepted and paid, enured in some form to the use or benefit of the plaintiffs, as the fruit of their contract.
The whole case turned upon the relations of Sinnickson & Co. to the plaintiffs in respect to this transaction. The question was whether they delivered this coal in fulfilment of a contract between these parties, or on their own account. The jury were properly instructed upon this point; but the defendants were entitled to the advantage to be derived from the bill of lading. The exclusion of that evidence makes a new trial upon the declaration in set-off necessary.
Exceptions sustained.
A new trial was held in the Superior Court, before Pitman, J., on the defendants’ declaration in set-off only.
[207]*207The defendants called Lamprey, who testified that he was a member of the defendants’ firm; that he had dealt with the Short Mountain Coal Company for a year or two before the transaction in question, and had bought coal of it, both from its wharf, and by the cargo; that his dealings had usually been with Moseley, a clerk in the office; that Moseley had told him that that was the only place where he could get pure Franklin coal; that before the transaction in question, he had had three cargoes of coal; that when he ordered these cargoes he had signed, at Moseley’s request, a written order on Sinnickson & Co., of Philadelphia, for the coal, and had subsequently received a bill of lading from Sinnickson & Co., similar to the one received in the present instance, and had accepted and paid a draft for the price of the coal drawn in their own name, by Sinnickson & Co.; that he always supposed Sinnickson & Co.
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Wells, J.
From the previous course of business between the parties, and the requests to have coal, sold to these defendants, sent to the railroad “in long tons and not in short tons,” we think the question whether the buyer and seller had, before the delivery of the coal sued for, mutually agreed to waive the provisions of the act requiring it to be weighed by a sworn weigher, was properly submitted to the jury as a question of fact. Gen. Sts. c. 49, § 187. St. 1865, c. 191, § 5.
The right of the defendants to avail themselves of a set-off, growing out of a previous transaction, depends upon the question whether, in that previous transaction, their contract was with these plaintiffs, or with Sinnickson & Co.
That the plaintiffs were engaged in selling coal, and had a place of business in Boston, and that Fowle and Moseley were their agents there, were facts not in dispute. From the testimony of the defendants it would have been competent for the jury to have found that an oral agreement had been negotiated with Moseley, for the sale of three hundred tons of coal by the plaintiffs to the defendants; by the terms of which the price, then fixed, was to be reduced if there should be a fall of price in the market before the end of February. If the coal was delivered and the acceptance given under such an agreement, the defendants, having paid their acceptance for the full price first fixed, would be entitled to maintain, in this mode, their claim for the amount so overpaid.
[205]*205The plaintiffs contend that the coal was delivered upon the written order signed by the defendants ; and that that writing constituted a contract with Sinnickson & Co., in which all previous oral negotiations were merged. The writing would not of itself have that effect, because, by its terms, it was not to be binding unless “ accepted in writing by the shipper,” and it does not appear to have been ever so accepted.
But the result would be the same, if the defendants, after signing such an order, received and accepted the coal sent in pursuance thereof, knowing or understanding that in doing so they were dealing with another party than that with which the original oral agreement was made.
It was material therefore for the defendants to show that in the whole transaction they supposed, and might reasonably suppose, that they were dealing exclusively with the plaintiffs. They offered evidence to show that the order was filled out by Moseley for them to sign, “ under this agreement ” previously made orally between them; and that they supposed Sinnickson & Co. to be “ the shipping agents of the plaintiffs.” The order itself is not inconsistent with that relation.
Upon this question, the bill of lading, the regularity and genuineness of which was not questioned, had some bearing. It was received at the time of receiving the coal in execution of the contract. We think it was competent as a part of the whole transaction, and should have been admitted.
If Sinnickson & Co. were the general agents of the plaintiffs for the shipping of their coal from Philadelphia, as indicated by the headings of the letters put in, and of the bill of lading, and the coal was forwarded and the acceptance received by them in that capacity, then the excess of the draft, over and above the price to which the coal should have been reduced in accordance with the agreement upon which the order for its delivery was given, would be money received by these plaintiffs, and a proper subject of reclamation and set-off in this action.
But if Sinnickson & Co. were an independent party, and sent their own coal as a sale from themselves upon an order addressed to them, and drew for the price and received payment of their [206]*206drafts in their own right as principals, whatever liabilities these plaintiffs might incur to the defendants upon the original oral agreement, they could not be held to have received the money paid to Sinnieksoti & Co. upon their draft, and therefore would not be liable for that as a set-off in this action.
The facts do not appear to have been developed in this direction at the trial. The propositions upon which the defendants asked instructions from the court would not have aided them, if instructions had been given as asked. They were not adapted to the real issue, and were therefore properly refused. Even if the plaintiffs were bound upon the original executory contract,— either on the ground that they were estopped by the representations “ that they were the only parties who could sell the coal,” and “ that they were the sellers ” in the proposed contract with the defendants; or on the ground of “ not disclosing that they were acting as agents of other parties,” — and were liable to the defendants for breach of the contract so made, yet such liability would not avail the defendants in this action. To maintain their set-off, it was necessary, not merely to show that the original contract was such as to be binding between these parties, but also that in its fulfilment the plaintiffs received money from the defendants in excess of the amount to which the contract entitled them; or that the draft, which the defendants accepted and paid, enured in some form to the use or benefit of the plaintiffs, as the fruit of their contract.
The whole case turned upon the relations of Sinnickson & Co. to the plaintiffs in respect to this transaction. The question was whether they delivered this coal in fulfilment of a contract between these parties, or on their own account. The jury were properly instructed upon this point; but the defendants were entitled to the advantage to be derived from the bill of lading. The exclusion of that evidence makes a new trial upon the declaration in set-off necessary.
Exceptions sustained.
A new trial was held in the Superior Court, before Pitman, J., on the defendants’ declaration in set-off only.
[207]*207The defendants called Lamprey, who testified that he was a member of the defendants’ firm; that he had dealt with the Short Mountain Coal Company for a year or two before the transaction in question, and had bought coal of it, both from its wharf, and by the cargo; that his dealings had usually been with Moseley, a clerk in the office; that Moseley had told him that that was the only place where he could get pure Franklin coal; that before the transaction in question, he had had three cargoes of coal; that when he ordered these cargoes he had signed, at Moseley’s request, a written order on Sinnickson & Co., of Philadelphia, for the coal, and had subsequently received a bill of lading from Sinnickson & Co., similar to the one received in the present instance, and had accepted and paid a draft for the price of the coal drawn in their own name, by Sinnickson & Co.; that he always supposed Sinnickson & Co. to be merely the shipping agents of the plaintiffs; that the defendants received from Moseley the letter dated June 22, and set forth above; that in the fall of 1869, he was at the plaintiffs’ office, and there agreed with Moseley to buy a cargo of 300 tons of Franklin coal, at eight dollars a ton, and to accept a draft for the same on ninety days, with the further agreement that he was to be allowed any fall in price before March 1, 1870; that at Moseley’s request he signed the order for the coal mentioned above; that afterwards the defendants received by mail the bill of lading for 325 tons of coal, and were notified at their bank in Haverhill of a draft received for their acceptance for the price of the coal; that they accepted the draft, and paid the same at maturity, which was about the middle of February; that in January, February and March, the price of coal was six dollars per ton; that the day, or day before, the draft matured, he called at the plaintiffs’ office and asked Moseley, to pay the difference of two dollars per ton, arising out of the fall in price, in all $650; that Moseley said that the treasurer, Mr. Fowle, was away, and wished that he, Lamprey, would pay the draft, and see Mr. Fowle when he returned; that in April he bought the coal sued for by the plaintiffs, and in July following had, for the first time, a talk with Mr. Fowle in regard to the matter, in which Fowle declined to make any allowance, saying [208]*208that it opened a matter which might bother them in the future, and said he should have no more Franklin coal from their wharf, or by the cargo, unless he paid the bill for the coal already bought from their wharf in Boston; that he would prevent it; that the defendants received from Moseley the letters dated the one, June 2, the other, July 16; that until just before suit was brought, no claim was made that the transaction was with any other party than the plaintiffs.
The plaintiffs called Elisha Moseley, who testified that in 1869 he was clerk in the office of the plaintiffs in Boston, and was not then in the employ of Sinnickson & Co., but was appointed an agent by them, January 1, 1870 ; that the plaintiffs had a wharf in Boston where they kept coal for sale by wholesale or retail, but they had no coal to sell by the cargo; that the companies had never sold any coal by the cargo; that he had sold coal to Hardy & Co. in 1868; that in the spring or early summer of 1869, Lamprey asked him, as a personal favor, to inform him when it would be advisable to order of Sinnickson & Co., and to order coal for him of them; that in consequence of that, he wrote the letter dated June 22,1869, and also obtained from Sinnickson & Co. some blank printed orders, and had, prior to the transaction in question, forwarded one or two of them, when filled and signed by Lamprey, to Sinnickson & Co.; that he had told Lamprey that Sinnickson & Co. had an agent in Boston and might object to his interference; that when the order was given, it was agreed that the defendants should have an allowance in case the price fell before the close of the season ; that in the coal trade the season is generally understood as ending, at the latest, on the last of December, and as much earlier as navigation is stopped by the ice ; that neither Fowle, nor any officer of the corporations, was informed of his transactions with the defendants; that they were not entered on the books of the plaintiffs which he kept; that he forwarded the order to Sinnickson & Co., inclosed in a letter; that he had nothing to do with forwarding the coal, or drawing the draft, or collecting it, and did not know whether the coal was sent or not.
[209]*209The plaintiffs then read the depositions of William B. Fowle and Thomas J. Yorke, Jr. Fowle testified that in 1869 he was treasurer and manager of the plaintiff corporations; that the companies owned mines in Pennsylvania and mined coal; that they had an oral contract with Sinnickson & Co., under which the latter had the right to buy the product of their mines, not exceeding one half thereof, at a price fixed each month by the companies and varying with the state of the market, less such amounts as Sinnickson & Co. should pay for railroad tolls from the mines to Port Richmond, Philadelphia, where the coal was delivered, and a fixed sum for expenses and charges for shipping and selling; that Sinnickson & Co. settled with the companies on the twelfth of each month, and paid in cash for all coal received by them from the plaintiffs, whether the same had been sold by them or not; that Sinnickson & Co. agreed to sell the coal at the price then fixed as above, without the deductions; that the plaintiffs bought of Sinnickson & Co. such coal as they wished at their wharf in Boston, and paid them for the same at the regular prices thus established; that they sold no coal by the cargo and had no agents for the sale of the same; that Moseley was bookkeeper for the plaintiffs, and his (Fowle’s) assistant in all business connected with the corporations; that he gave him (Moseley) instructions to do everything that was necessary to carry on the business of the company in its office work, and its sale of coal from the wharf; that the plaintiffs had no interest in the cargo in question shipped to the defendants, and received no part of the proceeds of the draft for the price of the same.
Yorke testified that he was a member of the firm of Sinnickson & Co.; that their business was that of purchasers, sellers and shippers of coal; that they received the order in a letter from Moseley; that they shipped the coal, sent the bill of lading and drew for the price, and that the proceeds of the draft were paid to and retained by their firm, and that no part of the same was paid to the plaintiffs; that the coal when shipped belonged to them, and the plaintiffs had no interest therein; that they dealt in other coals besides those received from, and bought of the plaintiffs that the words in the heading of the bill of lading, “ on account [210]*210of Short Mt. Coal Co. and Summit Branch Railroad Co.,” &c., were used without reference to their legal bearing, and merely to show customers where the coal came from; that the contract with the plaintiffs was substantially as testified to by Fowle.
The defendants called in rebuttal William Wallace, who testified that he was agent for the plaintiffs for the year 1867; that he then sold for them by the cargo; that he knew Sinnickson & Co., and arranged with them to ship coal for the company, and prepared bills of lading for them similar in form to the bill of lading in this case; that the prices were fixed monthly between Mr. Fowle and himself, and that he ordered Sinnickson & Co. to ship the coal.
They also called Samuel F. Rugg, who testified that he was agent for Sinnickson & Co. and John Romill in 1868 and 1869, and was so advertised over Mr. Fowle’s signature; that he always supposed they were agents for the plaintiffs, but was never present when the contracts between them were made; that he received his instructions from Philadelphia, and divided his orders as best he could between Sinnickson & Co. and Romill.
The plaintiffs offered in evidence the letter written by Moseley to Sinnickson & Co., and received by the latter, inclosing the defendants’ order for the coal, but the court excluded the same.
Upon cross-examination the defendants asked Moseley, “ Did Sinnickson & Co. own the coal in 1871 the same as they did in 1869 ? ” to which the plaintiffs objected, but the court admitted the question.
The letter from Moseley to the defendants, dated June 2, was objected to by the plaintiffs, but the court admitted it, “ instructing the jury that any offer of compromise is not binding and is not evidence of liability; but that if in the course of the offer the party makes any admission of matter of fact, that is competent; further, that it did not appear that Moseley had any authority to compromise; that that would be clearly outside his authority, but still that the letter was competent as tending to show that his relation may have been different from what he says, and that the defendants may show as a fact that he attempted to carry on a [211]*211negotiation; that Moseley has said that his business was simply to be a sort of channel through which this order was forwarded to Sinnickson & Co., and that it is a question for the jury whether the letter is inconsistent with that; that where a question was made as to a man’s interest in the subject matter of the suit, it might be shown that the party took upon himself to negotiate a compromise.”
The letter from Moseley to the defendants, dated July 15, was objected to by the plaintiffs and admitted on the same grounds.
The plaintiffs inquired of Fowle as follows: “ In the year 1869 had Elisha Moseley any authority to sell cargoes of coal belonging to the corporation?” The court upon the defendants’ objection excluded the question.
The plaintiffs at the conclusion of the evidence asked the court to instruct the jury that there was no evidence that the plaintiffs had received any part of the proceeds of the draft drawn for the coal; or that Moseley had authority to make any contract in behalf of the plaintiffs with the defendants for the sale of a cargo of coal; or that Sinnickson & Co. were merely agents for the plaintiffs; or that the plaintiffs had any interest in the coal shipped by Sinnickson & Co. to the defendants ; and requested the court to instruct the jury to return a verdict for the plaintiffs on the declaration in set-off.
But the court declined so to rule and submitted all these questions to the jury under instructions substantially in conformity to the language of the court in the opinion heretofore given in this case, to which no exceptions were taken. The jury found for the defendants, and the plaintiffs alleged exceptions, which were argued in March, 1875, by the same counsel.
Colt, J.
All the questions in this case arise upon the evidence offered to support or to defeat the defendants’ claim in set-off under their count for money had and received. The claim grows out of a previous sale of a cargo of coal to the defendants with an agreement for a stipulated allowance to them on the price paid if within a time named there should be a fall in the market; and the question at the trial was whether this previous sale was made and the price received by the plaintiffs, or by the [212]*212firm of Sinniekson & Co., acting on their own account. The defendants claimed that Sinniekson & Co. were the selling and shipping agents of the plaintiffs.
It was not disputed that the plaintiffs had a place of business and a wharf in Boston for the sale of coal at wholesale and retail, but not, as the plaintiffs insisted, by cargo; that Moseley, a clerk in their office, sent an order for the coal in question to Sinniekson & Co., and agreed to make the allowance claimed by the defendants. The coal was shipped by Sinniekson & Co., who sent the bill of lading to the defendants, and drew on them for the price, and the conditions have happened upon which, according to Moseley’s agreement, the allowance was to be made.
The jury, under instructions which are not reported, must have found that Moseley had implied authority, binding upon the plaintiffs, to make an agreement for the allowance claimed upon a sale of coal by the cargo; that Sinniekson & Co. were the shipping agents of the plaintiffs, with general power to sell by cargo, and that the plaintiffs had received under the agreement with Moseley the amount fixed by the verdict in excess of what they were entitled to in that transaction.
There was evidence that the sale in question was within the scope of the plaintiffs’ coal mining operations ; that Moseley was held out by them as having authority to make the agreement, and that the act was ratified by them. There was also evidence, including the admission found in the printed bill of lading and the letters coming from the plaintiffs’ office, which justified the jury in finding that Sinniekson & Co. were acting only as agents of the plaintiffs, and were required to sell at a price fixed by the company, but varying with the state of the market; that they were to receive only a fixed sum for services in selling and for guaranty of sale, while all the rest went into the plaintiffs’ hands ; and this is enough to support the count in set-off. We are not required to weigh all the evidence and determine upon which side the preponderance may be; it is sufficient on these exceptions that there is evidence to warrant the finding.
The rulings upon the evidence offered and admitted require some consideration.
[213]*2131. No exception can be sustained to the exclusion of the letter of Moseley to Sinnickson & Co. inclosing the defendant’s order for coal. Upon the issue raised, the declarations of an agent of the plaintiffs to another person are not admissible in favor of the plaintiffs to show whether that person was or was not an agent of theirs, or to support the agent’s testimony.
2. The question whether Sinnickson & Co. owned the coal in 1871, the same as they did in 1869, does not appear to have been an improper question to Moseley on cross-examination, and as the answer is not stated in the bill of exceptions it does not appear that the plaintiff was prejudiced by the question.
3. The letters from Moseley to the defendant were admissible as having a tendency to contradict his testimony, denying a sale and agreement by the plaintiffs through his agency. The jury were sufficiently cautioned as to their use for other purposes, but were permitted to use them as showing that he had more interest in the transaction than he had admitted.
4. The plaintiffs called one Fowle, who testified that he was treasurer and manager of the plaintiff corporations in 1869; that these companies sold no coal by the cargo, and had no agent for the sale of the same; that Moseley was book-keeper for the plaintiffs, and his (Fowle’s) assistant, and had instructions to do everything that was necessary to carry on the business in its office work and its sale of coal on the wharf. He was asked by the plaintiffs, if Moseley, in that year, had any authority to sell cargoes of coal belonging to the corporation, but on the defendant’s objection was not permitted to answer. As the case stood, an answer in favor )f the plaintiff would not have been material. If it was intended to ask whether any express authority had been given to Moseley to sell by the cargo, it was immaterial, as the defendant was not seeking to charge the plaintiffs on the ground that Moseley was actually authorized to contract, but upon the ground that he had been held out as their agent. If it was intended to ask whether by the acts or conduct of the plaintiffs he had been authorized or held out as authorized so to sell coal, it was an inquiry as to the inference to be drawn from the facts in the case, which was a question wholly for the jury. In neither aspect were the plaintiffs entitled to ask the question.
Exceptions overruled.