
    S. Lawson v. Gardner & Co.
    Appeal — Reversal—Instruction.
    Where the evidence does not show a right of recovery against a principal on the theory that the purchaser was an agent of .the principal, it was held reversible error to give an instruction based on such theory.
    
      APPEAL, FROM WARREN CIRCUIT COURT,
    January 11, 1873.
    /. W. Gorin, for appellant.
    
   Opinion by

Judge Hardin:

It is neither alleged nor proved that when selling the goods the plaintiff knew that Stewart was the agent of the defendant; but the account sued on shows the sales were made to Stewart, and presumptively on his credit; but the theory of the plaintiff’s case seems to be that, having sold the goods to Stewart, they had a right, nevertheless, to hold the defendant liable oh discovering that Stewart was in fact his agent, and bought the goods for him.

The evidence does not conduce to show a right of recovery except upon this theory. Wherefore the second instruction which the court gave for the plaintiff, however correct it may have been, if there was evidence that the sales were made and the credit given to the defendant himself on the faith of the known agency of Stewart, was abstract in this case; and it was misleading and erroneous in submitting to the jury the irrelevant question whether at the time the goods were sold the supposed pre-existing agency of Stewart had or not been terminated with public or private notice thereof to the plaintiffs. We need express no opinion on the question as to tKe sufficiency of the evidence to sustain the verdict.

But, solely for the error in giving the second instruction, the judgment is reversed and the cause remanded for a new trial on principles not inconsistent with this opinion.

-, for appellee.  