CONCUKBING- OPINION.
Rombauer, P. J.— The only question entitled to consideration, which is raised by this appeal, is whether there is any substantial evidence in this record that John O’Malley, in purchasing the stock from Jordan Bros., acted within the scope of his powers as a partner of the firm of O’Malley Bros, so as to bind Patrick O’Malley, a member of said firm, who is the present plaintiff. If he was acting within the scope of his powers, then it follows as a legal result that the two O’Malleys became primarily liable on the renewal of these notes, regardless of their positions thereon. In that event the Jordans were mere accommodation makers, and the other defendants accommodation indorsers for the O’Malleys on the renewal notes, as charged in their respective answers. While the evidence on this main question is not very satisfactory, I *622am not prepared to say that it was altogether insufficient. Agency in these cases, like in all others where its proof depends on controverted facts or admissible inferences, is a question of fact to be determined by the jury. Conceding that there was substantial evidence on that subject, the evidence was undoubtedly submitted to the jury on proper instructions; hence we would not be warranted in reversing the judgment.
In these views Judge Biggs concurs.