In Error to the Circuit Court of the United States for the District of Oregon.

Action by Mary Rees, Thomas M. Rees, James H. Rees, and William M. Rees, as trustees, against Jacob Kamm, Judgment for plaintiffs, and defendant brings error.

The defendants in error, as plaintiff's, recovered a judgment against the plaintiff in error, who was the defendant therein. For convenience, the parties will be designated herein as they were in the court below. For several years prior to the year 1889 the plaintiffs had been engaged in the business of manufacturing steam engines, boilers, and steamboat machinery at Pittsburgh. The defendant during that period was engaged in the business qf transportation by steamboat on rivers in Oregon, Idaho, and Washington, and he had contracted with and purchased from the plaintiffs engines, boilers, and 'steamboat machinery, in all of which transactions he had caused the machinery and supplies to be charged against the particular transportation company by which they were to he used, hut the evidence is, and it is not denied by him, that the credit was extended to him in all of these transactions, and that he always made the payments that were made thereon. On December 8, 1889, he telegraphed to the plaintiffs, inquiring how soon after receipt of an order they could deliver certain described stern-wheel engines, to which he received an answer on the following day. This exchange of messages was followed by a number of letters and telegrams between the parties, in ail of which the defendant appears in his individual capacity and not as representing a corporation, although in his letter of December 4, 1889, he made reference to the fact that several steamboat men and himself had a steamboat enterprise under consideration, and proposed to build a steamboat for use on the Snake river, and in his letter of December 21st, he wrote that the corporation would be filed and that the company would commence to build a boat, that the capital stock had all been subscribed, that he had taken one-fourth thereof, and he expected that he would he the president and his son the secretary of the corporation. On January 15, 1890, he telegraphed the plaintiffs, over his own name, accepting their proposition, and directing them to commence immediately. During January and February, 1890, further correspondence followed, concerning details and changes in construction of the engines and boiler. On February 17, 1890, the defendant telegraphed to the plaintiffs: “I will send you a draft for SI,000 to apply on the contract in a few days.” Four days later the draft was sent. The letter which accompanied it contains the request that the payment he applied on the contract for the 16"x7' engines for the Snake River Transportation Company, and adds, “and send me receipt for same. Tours very truly, Jacob Kamm.” This is the first mention of the Snake River. Transportation Company in the correspondence. Its articles of incorporation were filed on February 20, 1890, and its board of directors and officers were elected five days later. On March 2S, 1890, the defendant went to Pittsburgh, where he remained about three weeks superintending tlie construction of the engines and boiler. Soon after his arrival he gave the plaintiffs an indorsed draft issued by a life insurance company in favor of his wife for $3,300, of which $3,000 was credited on account of the contract. At the time of the payment he requested that the receipt be made as for a payment by the Snake River Transportation Company. 1-Ie testified: “I believe they finally made it out. There might have been some hemming and hawing about it.” The testimony of the plaintiffs was that he assigned as his reason for the request that he wished to keep this account separate from his other accounts, and that they assented thereto only on the expressed understanding that their contract'was with him only, and that they looked to him for the payment. On May 17 and 27, 1800, the engines, boilers, capstan, and machinery and supplies were shipped by the plaintiffs as instructed by the defendant, to the Snake River Transportation Company, at Bridgeport, Idaho. The plaintiffs testified that the boiler and machinery so consigned had been marked in the shop “Kamm” or “Jacob Kamm,” and that the mark “Snake River Transportation Company” appeared only on the manifest and shipping book. A1Í the bills’ for the machinery so furnished, and labor for making the drawings, and bills for freight were made out to the Snake River Transportation Company, but were sent to the defendant at his request at Portland, Or. All letters and telegrams sent by the defendant to the plaintiffs up to the date of October 15, 1890, were signed “Jacob Kamm,” and all letters and telegrams of the plaintiffs were addressed to Jacob Kamm, but on October 15, 1890, the defendant affixed the word “Prest.” to his signature in a letter to the plaintiffs, in which he said: “It was our attention to have made you a remittance soon after the boat commenced running, but owning to the delay, our company has instructed me to ask you for further time in making our payments.”

On June 16, 1891, James Rees, one of the plaintiffs, wrote the defendant at Portland, Or., addressing him in his individual capacity, saying: “I am much in need of some ready cash just now, and would like you to arrange for a settlement, or send me a draft.” A month later the defendant answered that arrangements had been made for a general meeting of the stockholders, and that the plaintiffs’ account would be one of the matters brought up for consideration by the Board. The meeting took place on August 15, 1S91, but in the meantime actions had been begun against the Snake River Transportation Company on debts owing from it, and an attachment and an execution had been levied oh the Norma, the company’s boat. On August 21st, another action was commenced, with an attachment on the boat. On that date the defendant as president wrote to the plaintiffs, reporting the action of the stockholders at ’the annual meeting, stating that the boat had cost $30,000, and that the indebtedness of the corporation was $10,000 or $11,000, and proposing that the plaintiff take stock to the amount of $5,000 in a proposed reorganization of the company, that sum to he credited on their claim. On August 27th, Thos. M. Rees, for the plaintiffs, wrote declining the proposition, but suggesting to the defendant that he take notes of the corporation for the amount of the plaintiffs’ claim and secure the same by his indorsement. Soon thereafter the defendant consulted C. W. Miller, an attorney in Portland with reference to the claims against the boat, and Miller advised him to have all the claims assigned to one person, and to have a suit brought against the corporation in the name of that person. In carrying out this plan, the defendant gave the letter from Thos. M.’ Rees of date August 27, 1899, to one Dugald McMurchey, an attorney, and McMurchey went to Pittsburgh and had an interview with the plaintiffs. In that interview, according to the testimony of the plaintiffs, McMurchey stated that he had been sent there by the defendant as his attorney, that the defendant was having some trouble with his partners,, and that he wished the plaintiffs to make an assignment of their account to him so that he could protect himself in a settlement with his partners, and that after McMurc-hey had stated that if the plaintiffs- would make such an assignment he would advise the defendant as his attorney that he was morally and legally responsible for the account, the plaintiffs made the assignment to the defendant, and afterwards on the same day, at the instance of McMurchey, they made a second assignment; to I). A. Shindler on the representation of McMurchey that it might be needed to protect the defendant’s interests. McMurchey returned with these assignments to Portland. On September 14, after McMurchey had left Pittsburgh. Thomas M. Rees, one of the plaintiff's, wrote to the defendant a letter, in which, among other things, he stated: “We * * * finally agreed to assign our claims as we considered that you are the party whom we look to, as wo did not know the Snake River Transportation Company, when we contracted. We thought it was one of your boat enterprises, and we made the assignment to you and also to 11. A. Shindler, whom your attorney said you might want to use the name of to- enter proceedings. * * * We desire to assist you in any manner possible not detrimental to the estate, in any ¡rouble you may have with your company and partners.” On September 2,°>d, the defendant answered the letter of Thomas M. Rees, returning therewith the assignment which had been made to himself, and stating: “I am retaining the assignment to Mr. Shindler, which we will probably have to use some time this week in order to protect your firm. I know Mr. Shindler, and the assignment in his hands is perfectly safe. I am personally anxious if possible to protect your interest, but do not want to assume any responsibility outside of my position as president of the company.” About this time the defendant, accompanied by McMurchey, went to the store of the G. Shindler Furniture Company at Portland, where he introduced McMurc-hey to D. A. Shindler. Shindler had been acquainted with Ihe defendant many years and his firm had done an extensive business in supplying furniture for the defendant’s boats. It had a claim of $343.70 for furniture supplied to the Norma. The defendant asked Shindler if he would be willing to take the assigned accounts, together with his own account, and bring suit thereon against the Snake River Transportation Company, and Shindler consented to do so. ’The defendant asked him to recommend a lawyer, and Shindler referred him to the firm of Miller & Miller. At the request of the defendant, Shindler went with him to the office of Miller & Miller, and signed the complaint and an action was begun thereon on the assigned claims of the plaintiffs herein, the G. Shindler Furniture Company claim and two others. The defendant employed and paid C. W. Miller for his services in the action, and directed the conduct of the case, and the plaintiffs herein had nothing to do therewith. On September 25, 1891, the boat was attached in that action, subject to the prior levies and attachments. On the following day it was sold at public auction for $4,000 on a judgment rendered in one of the prior actions. A brother-in-law of the defendant was the purchaser. Subsequently the defendant directed F. C. Miller, the cashier of the United States National Bank, of which the defendant was vice president, to advance the $4,000 for the purchase of the boat, and to take the certificate of sale in his name, saying that he would be responsible to Miller therefor. The defendant p.aid the $4,000 and took the boat as his individual property. He subsequently paid in person the claim of the G. Shindler Furniture Company in full.

On October 29, 1891, James Rees wrote to the defendant, referring to the assignment as having been made to protect the defendant, and his interest in the company, and alluding to the fact tlxat the defendant had intimated in his letter of September 23, 1891, that he did not consider himself responsible for the payment of the plaintiffs' bill, and saying: “Let us understand this matter in plain English, so that we may know exactly the silnation and enable us to act. We do not for one moment think, from our understanding with your attorney, Mr. McMurchey, that you would refuse to be responsible for the machinery, etc., which you bought in your name and other merchandise which you personally bought through our house, and received the discounts that was allowed the trade. * * * You know full well that we did not sell to you as president of the company.” The defendaxxt made no answer to that letter. On January 6th, James Rees wrote another letter to the defendant, directing attention to his letter of October 20th, and to the fact that it remained unanswered. On January 21st, the defendant wrote the plaintiffs a letter in which he denied that McMurchey had. been his attorney, and denied his liability for the debt, and stated that he would be willing to pay upon their claim the sum of $2,500. He also stated in the letter: “The first letter I wrote you advised you that this enterprise was to be undertaken by an incorporated company.” The plaintiffs answered on February 22, 1802. expressing their surprise at the defendant’s statement that McMurchey was not his attorney, and stating: “When he arrived he had a letter he read from you, instructing him to come here and arrange with us,” etc., and the writer denied that the defendant had ever written the plaintiffs that the enterprise was to be undertaken by an incorporated company, and called his attention to the fact that the first mention of the company was in the letter of February 21, 1890, requesting that the $1,000 payment be applied on the contract for engines, etc., for the Snake River Transportation Company. “That,” said the writer, “was the first knowledge we had of a company, and we did not know it was incorporated, and, further, we never heard that it was until after your company failed. * * * We think you should pay us, as under no account would we have given credit to a company unknown to us without security.” In December, 1892, T. M. Rees came to Portland to see the defendant in relation to the plaintiffs’ claim, and the defendant then offered to pay 50 cents on the dollar in settlement thereof. The offer having been declined, the present action was commenced.

The complaint sets forth five causes of action. The first is on a contract to construct, sell, and deliver to the defendant a pair of steam engines therein described, and a steam boiler,-for which the defendant agreed to pay the sum of $7,350, but had paid thereon $4,000 only. The second is upon a contract to build, construct, sell, and deliver to the defendant a steam capstan at the agreed price of $575, no part of which had been paid. The third is on an account for goods, wares, and merchandise alleged to have been sold by plaintiffs to the defendant at his instance and request, of the value of $2,137.40, no part of which had been paid. The fourth is an action to recover for work and services alleged to have been rendered the defendant by the plaintiffs in making drawings and laying out pipe work for a steamboat at the defendant’s request, the reasonable value of which is stated to be $150, no part of which had been paid. The fifth cause of action is to recover freight charges paid by the plaintiffs, alleged to have been paid at the instance of the defendant, amounting to $19.37, no part of which had been paid. The defendant answered, denying that he had contracted with the plaintiffs as alleged in the first and second causes of action and denying that the goods, wares, and merchandise described in the third cause of action had been sold or delivered to him, and denying that the work and services alleged in the fourth cause of action were performed for him and that ‘the freight charges had been paid on his account, and he alleged as a further defense to the first cause of action that the contract had been made with the defendant, acting for and on behalf of the Snake River Transportation Company, and alleged that the $4,000 paid thereon had been paid on behalf of said company. ■ As a further defense to the second cause of action, the answer alleged that the contract for the construction and delivery of the steam capstan was made by J. D. Miller, the superintendent of the Snake River Transportation Company, who was acting for and on behalf of the company and not otherwise. As a further defense to the third cause of action, the answer alleged that the defendant, acting for the Snake River Transportation Company, ordered and purchased the goods in said cause of action described. The answer also alleged that by reason of the plaintiffs having charged and made out their account against the Snake River Transportation Company, and having credited said company with the payment of $4,000, and having assigned their account to Shindler, and by reason of Shindler’s action in suing on the same, and prosecuting it to judgment against the corporation, the judgment was a bar to the first cause of action, and the plaintiffs were estopped from alleging that the defendant was the party with whom and for whose benefit the contract had been made, and that the said judgment was also a bar to the second and third causes of actiou. The plaintiffs in their reply alleged that after the manufacture and sale of the engines and boiler and steam capstan, and the sale oí the goods, wares, and merchandise and machinery to the defendant, he requested the plaintiffs to charge all sums of money due thereafter on the plaintiffs’ books to the Snake It ¡ver Transportation Company, and to bill and consign all machinery, etc., to ihe defendant in the name of said corporation as an accommodation to the defendant to enable him to keep his accounts separate, and that at the time when said engines, boiler and steam capstan were manufactured, and before said goods, wares, and merchandise were delivered to the defendant, he agreed to pay the contract and purchase price therefor, that the plaintiffs gave and extended credit therefor solely to the defendant and not to tile said corporation, and that the assignment of the account to Shiudler was made solely at the defendant's request, and for ills accommodation and benefit, and that the plaintiffs received no consideration therefor. On the trial the jury returned a verdict for the plaintiffs for the sum of $7,131.79 and interest, on which judgment was rendered for $10,117.40.