There can be no doubt that Parkhurst was either the agent of Whitney & Co. in making the purchase, the defendants being the principals; or that he was a joint contractor with them in such purchase.
The latter seems to us the true construction of the contract. The funds were furnished by Whitney & Co.; such wool is to be purchased as will be best adapted for those buying of them; the wool is to be sent to them; Parkhurst to be allowed half profits, and one half per cent, per pound for buying in the country; Whitney & Co. to be paid two and a half per cent, commission for guaranty, and nothing for sales; Whitney & Co. request Parkhurst to have no operation of this same kind, “joint account,” with any body else ; transactions of the above named kind to be repeated, as often as may be thought for mutual benefit. The form given at the end for bills of sale is of little moment. It cannot change the substance of the agreement between the parties.
If Whitney & Co. and Parkhurst were jointly liable for the purchase, and Parkhurst was not joined in the suit, the nonjoinder, if the defendants would avail themselves of it, must be pleaded in abatement. This they have not done.
Parkhurst gave to the plaintiff, at the time of the purchase, a draft or bill on Whitney & Co. for the purchase money. This was a means of payment; the presumption is, that it was intended as such. But what was intended as the means of payment was not a written request to Whitney & Co. to pay the plaintiff, but a draft accepted by them.
It was not accepted nor paid; and if it was duly presented for acceptance and payment, and duly protested, such failure, it seems to be conceded, remits the plaintiff to his original remedy for the goods sold. The plaintiff has produced the original draft, and put it into the case. His mere possession of the draft, unexplained, would be prima facie evidence that it had not been paid.
*251The plaintiff also produced a letter, dated some days after the maturity of the draft, from the defendants to him, stating the reason why they did not accept. The defendants contended that the only legal evidence of the protest was the evidence of the notary himself on the stand, and all other evidence less than this was insufficient. The presiding judge ruled that the letter would be evidence from which the jury might infer the necessary presentment and protest. This was but saying, the written admission of a party was competent evidence to prove a fact. We may venture to say, that is good law.
Exceptions overruled.