*467The opinion of the court was delivered by
Wheeler, J.The plaintiff’s evidence tended to show, that although he and Walsh owned the property sold together, he sold it to the defendant in his own name and on his own behalf. The defendant’s evidence tended to show that the plaintiff acted in behalf of himself and Walsh in making the sale. Upon this state of the evidence, the request of the defendant, asking the court to hold that if the plaintiff and Walsh owned the lumber jointly, the plaintiff could not maintain this action, was not sound in law ; for he could maintain the action if he made the sale in his own name and behalf, even though he and Walsh did own the property together. The charge of the court; that if they did own it together, the action was well brought, appears to have been excepted to. But, if they together owned the property sold, the action would not be well brought, unless the plaintiff dealt with the defendant as for himself alone in making the sale. The right to maintain this action, would turn on whether the plaintiff made the sale for himself alone or for himself and Walsh together. This question was not submitted to the jury. The charge making the right to maintain the action absolute, without having that question passed upon, was erroneous.
Judgment reversed, and cause remanded.