The first instruction requested and given was concerning the receipt of Rogers for the notes as tending to show, that he acted as agent of Coburn and Glazier in selling the logs. The second was concerning certain acts of the plaintiffs, Coburn and Glazier, as proof of their ratification of the acts of Rogers as their agent, if he acted as such. The third instruction was, “ that the same facts” (the facts mentioned in the first and second instructions,) “ tend to prove an agency in Rogers in behalf of the other plaintiffs respecting the logs.”
But the receipt contains nothing which indicates such agency, and does not tend to show it. It was given “ on account of *108logs sold him by us.” For aught that appears by the receipt, it is as probable that the sale was effected by them all together or by any other one of them, as by Rogers, and the jury were erroneously instructed that it tended to prove an agency, which it had no tendency to prove.
Exceptions sustained, and new trial granted.
Shepley, C. J., concurred; Howard, J., concurred in the result.