William H. Jessup et al., Appellants, v. Jacob Steurer, Respondent

William H. Jessup et al., Appellants, v. Jacob Steurer, Respondent. (Argued December 11, 1878; decided December 20, 1878.) This action was brought to recover for a quantity of malt alleged to have been purchased by defendant of plaintiffs. The malt was sold to one Gescheidt and credit given to him, but plaintiffs’ evidence was to the effect that Gescheidt was in fact the agent of defendant in making a purchase. Held, that plaintiffs, although they supposed Gescheidt to be the purchaser, yet if they afterwards discovered that defendant ■ was the principal, were entitled to resort to defendant for payment. (Meeker v. Olaghorn, 44 N". Y., 349.) The principal controversy oil the appeal was as to a ruling of the trial court holding that defendant was not liable for malt had by Gesolieidt, prior to April 9, 1872, and excluding it from the consideration of the jury. Held, error, as plaintiffs’ evidence was substantially the same as to malt purchased before as after that date, and it being- disputed by defendant’s evidence was for the jury to determine. Samuel Jones for appellants. Henry Daily, jr. for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for reversal and new trial. All concur. Judgment reversed.