¶1As observed in the statement of the case, no point is now made upon any alleged insufficiency of the evidence to justify the verdict.
¶2The complaint of the appellants is that, under the issues and the evidence, the instruction of the court as to fraud was error.
¶3It is not suggested anywhere in the case that any fraud was attempted upon creditors of the defendants, nor upon creditors of the plaintiffs, nor upon any one who is in any way connected with this contention, either of record or in interest. If it is attempted to be construed from the evidence that any fraud was contemplated against any one, the supposititious victim was the supposititious creditor of W. A. Boyce, a third person.
¶4Let it be noticed that the existence of a fraud was invoked against the defendants. Plaintiffs did not plead anything of this sort, and its existence they vigorously denied in their evidence.
¶5Defendants did not offer to prove any such facts in defense, as the instruction suggests. And Casey denies in terms that any fraud or wrong against the creditors of Boyce was intended or committed. Of course, such denial would be of small moment if his acts belied his words, however solemn they might be; and the matter of fraud was properly a subject of inquiry.
¶6But regard Casey’s acts. Bemember, in the first place, that plaintiff Purtle, to whom, and not to the defendants, the objectionable instruction would be a benefit, denies that he gave as a reason of his desiring to bill the lumber to Casey that he wished to avoid attaching creditors of Boyce. Now, Casey testifies that Purtle did make this suggestion as to the Montana Improvement Company, a supposed creditor of Boyce. Upou the Montana Improvement Company being mentioned, Casey declined to make the arrangement, which he says Purtle proposed. Casey said that if he were garnished under those *235circumstances he would answer the facts. He would have nothing to do with having the lumber billed to him until he sent for Boyce, and ascertained from him that it did not appear that the Montana Improvement Company was a creditor of Boyce. No other alleged creditor of Boyce was mentioned in this connection. Having taken all these pains, having ascertained all these facts, on this understanding of the situation, Casey consented that plaintiffs might ship the lumber in his name. This testimony of Casey stands wholly undenied. Such conduct does not look like contemplated or consummated fraud.
¶7But respondents may say, if this transaction was not a fraud, why was the lumber billed to Casey? The answer is found in their own mouths. Because Casey and Largey were the purchasers of the lumber, as plaintiffs allege and testify and seek to establish. If that be true, the phantom of fraud dissolves before the light of plaintiffs’ own pleading and testimony.
¶8On the other hand, if it be true, as defendants allege and testify, that they were not the purchasers, but allowed plaintiffs, at their own request, to ship the lumber in the name of Casey, and there were no threatening creditors of Boyce of whom defendants had any knowledge in this connection; that they made diligent inquiry upon that point, and found that the only concern supposed to be a creditor did not appear to be such, and Casey said to Purtle that he would answer the facts upon a garnishment, — it occurs to us that the fraud conjured up in this case is a decidedly unsubstantial fabric.
¶9The issue in the case was squarely made. It was an allegation of sale and delivery on one side and a denial on the other. The evidence was as squarely contradictory as the issue. The plaintiffs did not plead or seek to prove or rely upon any fraud. The defendants repudiated its suggestion, and their testimony as to their acts did not tend to fix upon them any fraud contemplated or enacted.
¶10The instruction of the court complained of was severely adverse to the defendants. It tended to prejudice them with the jury. It was unauthorized by the evidence, and for that reason the judgment is reversed and the cause remanded.
¶11Reversed.