Opinion by
Porter, J.,The plaintiff brought this action to recover the amount of a loan alleged to have been made to the defendants, evidenced by a promissory note payable on demand. The learned judge who presided at the trial gave binding instructions in favor of the plaintiff and Benjamin Menkle and Otto Menkle, partners trading as Menkle Bros., appeal from the judgment entered upon the verdict.
The plaintiff testified that she had made the loan upon the application of her brother, Adolph Reinheimer, in behalf of Menkle Bros. That she had given to Reinheimer her check, payable to his order, for the amount of the loan and that he had thereupon given to her the promissory note, payable on demand, signed “Menkle Bros.,” which signature was in the handwriting of Reinheimer. She produced the check, which had been paid through the New York clearing house, and *511bore the indorsements of Adolph Reinheimer and “Menkle Bros.” She testified that the indorsement of' Menkle Bros, upon the check was also in the handwriting of Adolph Reinheimer. The appellants, Benjamin Menkle and Otto Menkle, having filed an affidavit of defense averring that Reinheimer was not a member of the partnership of Menkle Bros, and had no authority to borrow money or sign notes for that firm, the burden was upon the plaintiff to produce evidence establishing the authority of Reinheimer to bind the firm. The plaintiff did not attempt to meet this burden by showing that Reinheimer was a member of the partnership, but attempted to show that the appellants had actually received the money. She called her brother, Reinheimer, who testified that he attended to the financial business of Menkle Bros., that the firm was in need of money and that he had applied to his sister for this loan; that when he received the check payable to his own order he indorsed upon it his own name and that of Menkle Bros, and deposited it in the bank account of the firm. He testified, also, that he had authority to sign the name of Menkle Bros, to checks drawn upon that bank account. Having thus testified in chief, this witness was upon cross-examination asked this question: “Q. Is it not a fact that you borrowed this money, if you borrowéd it at all, on your own personal account, for the purpose of making good a shortage that then existed in your account with Messrs. Menkle Bros.?” The court sustained an objection to this question, to which ruling the defendants took an exception, which is the foundation of the third specification of error. We. are of opinion that this evidence should have been admitted. The whole tenor of the testimony of this witness was to fix a liability upon the defendants upon the ground that the check of the plaintiff had gone, into the bank account of the firm, that they must be held to have received the money from her as a loan, and, therefore, ought to repay it. The answer to the question, which was ex-*512eluded, must necessarily have thrown light not only upon the character of the transaction between the witness and his sister, the plaintiff, but upon the true nature of the deposit of the check in the bank account of the firm. Was this a loan to the defendants, or to their defaulting clerk, the witness? Was the check deposited a loan by the plaintiff or a payment by the witness upon the shortage in his account? The third specification of error is sustained. The entire testimony as to the authority of Reinheimer to borrow money for this firm was oral, the credibility of the witnesses was for the jury, and the learned judge of the court below fell into error in giving binding instructions in favor of the plaintiff. The sixth specification of error must, for this reason, be sustained.
The judgment is reversed and a new venire awarded.