delivered the opinion of the court.
In our opinion, this cause has not been tried on the real point involved in it. That point is, whether Pomeroy & Andrews received the produce of Sigerson as mere forwarding agents, or whether, under their advertisements in the newspapers, it was placed in their hands for sale. Or, in other words, was it the understanding between the parties that Sigerson should look to Pomeroy & Andrews for the money arising from the sale of his produce ; or was he bound to look to the agent Pomeroy & Andrews might employ, without knowing who he was ? Suppose the produce had been forwarded to Liverpool and the proceeds of the sale made way with by an insolvent agent there: to whom would Sigerson have looked for his produce — to Andrews & Brother, or to Pomeroy & Andrews ? It can make no difference that the directions of Sigerson could not be complied with. If the produce was placed in the hands of Pomeroy & Andrews, to be sold in a particular way, their inability to comply with the directions would not vary the undertakings they assumed at the outset. If Pomeroy & Andrews were liable to Sigerson for the proceeds of the sale when they received the produce, they remained liable, notwithstanding their inability to sell it, as they were directed. The fact that Sigerson did *187not object to tbe arrangement made by Pomeroy & Andrews with Andrews & Brother, respecting the sale of the lard, does not prove that Sigerson released them from liability as his agents for the sale of it.
There were facts and circumstances in the case which should have been submitted to the jury, with a direction to determine whether Pomeroy & Andrews were not the agents for the sale of the lard, and that those whom they employed were their sub-agents, for whose conduct they were liable.' This is a question for the jury, and we express no opinion in relation to it.
As the first instruction given for the plaintiffs was expressed in such a way as to exclude this view of the case from the consideration of the jury, the judgment must be reversed.
The facts, as proved, did not, according to the recent decisions, constitute a partnership between the parties.
As this ease was commenced under the old system of practice, the rules of evidence, as they then existed, will prevail in ascertaining the competency of witnesses. To disqualify a witness, he must be legally entitled to payment out of the fund. A mere expectation of payment, however strong, if not amounting to a legal right, has been held insufficient to render a witness incompetent. (1 Greenl. 460.) This is said in reference to the deposition of Benoist.
Judge Ryland concurring,the judgment is reversed, and the cause remanded.