¶1The argument of the defendants’ counsel is based wholly upon the assumption that the defendants were simply the agents of the Commercial Insurance Company of New York, and that their engagements were entered into in behalf of said company, and in no respect were personal engagements. The plaintiff, however, makes no claim upon any contract made by the defendants in behalf of such company. On the other hand he contends that the contract of the defendants was a personal contract with him, and a personal engagement not to deliver the check to the Commercial Insurance Company until the happening of a certain event; that they personally agreed with him that they would so retain the check and not deliver it, and that, in violation of their personal agreement with him, they did deliver it; that such delivery was not only in violation of his rights, but that there was no right in the insurance company to have the check, or the amount of it from the Fitchburg Railroad Company, in whose behalf the plaintiff was acting, and by whom the payment of the amount of the check was to be made.
¶2The court instructed the jury that “ if the plaintiff delivered the check to the defendants’ agent, with directions to retain it till the plaintiff could ascertain whether the railroad company would accept the policy, and this condition was communicated to the defendants, and assented to by them, and they agreed to so retain it, and the railroad company rightfully refused to accept the policy, because it did not conform to the application, and this refusal was forthwith communicated to the defendants, and they agreed still to retain the check till corrections could be made in the policy, and the defendants the next morning, in violation of these agreements, gave up the check to the agent of the insurance company, to the injury of the plaintiff, he might-recover in this action; but unless the jury were satisfied that the several propositions above stated were proved, their verdict should be for the defendants.”
¶3*546Certainly these instructions were quite sufficiently favorable to the defendants. If in reality the plaintiff had owed the insurance company the amount of this check, (which was not admitted but denied, and which could not be tried in this action,) and the check had been his own property, (which also does not appear,) the defendants would have had no right against his prohibition to have paid it to the company. The fact that the defendants had but a limited authority to act for the insurance company is important only in relation to contracts in which they acted in behalf of such company, and can have no effect upon any contract which in their own behalf they personally entered into. However competent it might be, as bearing upon the probability of the correctness of the plaintiff’s claim, it is certainly unimportant, if the plaintiff established to the satisfaction of the jury all the facts which the presiding judge ruled that it was necessary for him to establish, in order to entitle him to a verdict. Exceptions overruled.