The proof in this case very conclusively shows that Hutchinson was' buying hides in the city of Austin, for Mann & Co; that Caden, the defendant, was a member of the firm of Mann & Co; that Holden,- on whom the draft was drawn, was doing business for Mann & Co; that Hutchinson had been placed at Austin to buy hides to ship to Mann & Co., and that Mann & Co., and especially Caden, had clearly recognized and held Hutchinson out as the agent of Mann & Co; that Hutchinson had been *303in the habit of drawing drafts on Holden, all of which were paid except the one sued on, and that the money-arising from the draft, when sold to appellants, went' to pay for hides shipped to Mann & Co., and that the money has not been paid to Raymond & Whitis.
It was insisted below that the draft has not been protested, and that suit had not been brought to the first term of the court. Hnder the state of facts here disclosed, Mann & Co., must he considered as both maker, or drawer, and drawee of the draft, and as such were not entitled to protest or notice, nor to avail themselves of the rule that in order to bind indorsers and others, suit must be brought to the first term of the court. They were primarily liable for the debt. (Hasey v. White, 1 Doug., Mich., 193; Dangol v. Cowls, 5 Day, 511; Cunningham v. Waldwell, 3 Fairf, 466; Marion v. Hodge, 9 Id., 163.)
But under our system of procedure' and the allegations and proof in this case, plaintiffs are entitled to recover without reference to the draft as commercial paper.
The hides were purchased with the money arising from the draft, which was drawn according to the usual custom with these parties at the time. The property was received and enjoyed by Mann & Co., and no reason in law or equity can be shown why they should not pay the debt.
The defendants, Mann & Co., held Hutchinson out as them agent. This is clearly shown by the testimony of Townsend, the elder Hutchinson, and others. He obtained the money for the use and benefit of defendants, and which they enjoyed in the receipt of the property purchased with the money, and they ought to pay the debt. The rules of pleading and practice at common law on bills of exchange and promissory notes have no force in our courts; and whether the paper set out in the pleading in this case, drawn by Mann & Go. upon themselves, is to be treated as a promissory note, (see Story on Bills', 35, 359,) or as amere history of the transaction, the equities between the parties must control our judgment.
Reversed and Remanded.