majority"> Per Curiam.

It appears, by the books of Brown which by consent were admitted in evidence, in connection with the accounts, that the defendant had been paid substantially for all the lime sold by Brown for them up to July 31, 1884, and the plaintiff in like manner for all the cement sold by him up to July 8, 1884. It was, therefore, a matter of no moment to either party whether Brown had, as respects transactions prior to these dates, respectively, misapplied the notes taken for the property of the respective parties by turning notes-belonging to one over to the other. If, therefore, it had appeared, for instance, that the plaintiff had not received as. many of the notes given for the defendant’s lime as the defendant had of notes given for the plaintiff’s cement, no cause of action would have been shown in plaintiff’s favor, because as the plaintiff had through Brown received full payment for liiscement, he had nothing of which lie could complain, although Brown had wrongfully used notes taken for cement, in turning, them over to the defendant. The same would be true as te the defendant under similar circumstances.

Therefore, the admission made on -the trial that it did not appear from the evidence which of the parties received from Brown, during the course of his joint agency (which ran. through five or six years prior to Juiy, 1884), the larger amount of the notes of the other party, was not an answer to the case-made by the plaintiff.

It appeared that subsequent to the balancing of the accounts of the respective parties in July, 1884, Brown dealt with the-notes taken on subsequent sales the same as before, and the- *364 dealing continued up to liis failure in November, 1884 and that during that time he transferred to the defendant more in amount of the plaintiff’s notes taken for cement, to apply on defendant’s lime account, than he transferred to the plaintiff, of the notes taken for defendant’s lime, to apply on the plaintiff’s cement account. Both parties were entirely innocent, each supposing that the notes received represented sales of lime or cement furnished by the party receiving the note. JPrima facie, therefore, as it seems to us, the plaintiff made out a case for recovering as to such excess of the notes taken .after July, 1884, for plaintiff’s cement, as was in defendant’s hands over and above the amount of notes taken for defendant’s lime, after the • same period, received by plaintiff. As the evidence stood, the burden was cast on the defendant to ■disprove the inference of indebtedness to the plaintiff arising from the circumstances.

We do not see that the action was by the stipulation turned into an action in equity for an accounting, but even in that view, pri/ma facie, there was a balance due to the plaintiff.

We think the judgment' should be reversed and a new trial granted.

All concur, except Peokham, Gray and O’Brien, JJ., not voting.

Judgment reversed.

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