
    IRA LAKEY, Plaintiff, v. GEORGE LOOMIS, Defendant.
    This action was brought to recover back a part of the money paid by plaintiff on a purchase of wool, upon an alleged agreement that the wool should be reweighed, and that the defendant should refund the purchase-money in proportion to the shrinkage in it, if there should be any. The complaint alleged that the dealings in relation to the wool were had with the plaintiff, and that the money due by reason of the shrinkage belonged to the plaintiff. The defendant denied the allegations of the complaint, and alleged that the purchase and agreement were made by one Frank Lakey. At the trial the court submitted the question to the jury, whether upon the evidence the plaintiff was entitled to maintain the action. The jury rendered a verdict for the defendant. Held, “ that the court should not have submitted that question to the jury, as there was no evidence that any person other than the plaintiff was entitled to sue upon the contract. The submission of it was equivalent to an instruction that there was evidence that would authorize them to find against the plaintiff on that ground.”
    Motion for a new trial, on exceptions ordered to be heard in the first instance at General Term.
    
      E. G. Lapham, for the plaintiff.
    
      S. B. McIntyre, for the defendant.
   - Opinion by Mullin, P. J

New trial granted, costs to abide the event.  