¶1 The exception must be sustained. There was evidence produced by the defendants on the trial tending directly to prove that the plaintiffs were not the agents of the defendants, but that the latter purchased the piece of machinery in question directly from them, and not from the manufacturers thereof. One of the defendants so expressly testified; the bill of charges rendered by the plaintiffs to the defendants contained an item of charge for it, and *525 the correspondence put in evidence tended likewise to prove the same fact. There was evidence tending to prove delay-in supplying the machinery in question, when, by the terms of the contract, it should have been shipped promptly, etc.
¶2 There was evidence — correspondence—going to show that the defendants had repeatedly written the manufacturers of the machine, urging them to hasten the shipment of the same, but this correspondence did not develop — -certainly not in terms — any contract of sale on the part of the manufacturers to the defendants. The mere fact that the latter urged the former to hasten the shipment of the machine could not, necessarily, prove that the plaintiffs were the defendants’ agents to purchase the same. In any view of the evidence, the Court ought not to have instructed the jury to render a verdict in the negative upon the first issue submitted to them. At least ft should have submitted the question of agency, with appropriate instructions.
¶3 There is error. * The defendants are entitled to a new trial, and we so adjudge. To that end, let this opinion be certified to the Superior Court-
¶4 Error.