I concur in the reversal of this judgment upon the ground that upon the undisputed evidence the defendant received the proceeds of the sale of this butter in a fiduciary capacity, and that the plaintiff was, therefore, entitled to the direction of a verdict. It was plainly not the intention of the parties that there should be a sale of the butter by the plaintiff to the *37defendant. He was'to receive the butter and sell it at a price that was five cents a pound above the market price of butter of this quality; and it was undoubtedly a part of the agreement that he guaranteed a sale of the butter at a price specified. It was further agreed between the .parties that the defendant’s commission was to- be one-half of the difference between the price at which the butter was invoiced and the price at which the butter was actually sold; but such an_agreement was not at all inconsistent with the fact that the substantial transaction was the consignment of the butter by the plaintiff to the defendant to be. sold on the plaintiff’s account. It was so treated by the defendant in his accounts that he rendered to the plaintiff, and I think that was the legal effect of the arrangement between them. I do not agree that the testimony as to the agreement between the defendant and Waldo, the-plaintiff’s predecessor in business, was incompetent, for after Waldo had sold the business to the plaintiff it was expressly agreed that the defendant would continue to receive butter from the plaintiff upon the same terms that he had been in the habit of receiving it before from Waldo. It was, therefore, competent to show the conditions under which Waldo and the defendant had done- business.
I, therefore, concur in a reversal of the judgment.
Clarke, Scott and Miller, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.