¶1The only question submitted in this case is, whether the instruction of the court to the jury, as to the burden of proof, was correct. The instruction was, that if the jury were satisfied that P. R. Merriam was the authorized agent of the defendants, when the lumber sued for was purchased, the defendants were liable, unless they proved that the plaintiff agreed to rely upon the agent; and that the *473burden of proving that the plaintiff did so rely, was upon the defendants. This instruction would be unexceptionable, if the defendants had admitted that the purchase was made by the said P. R. Merriam on their account. But this was the principal question at the trial; and much evidence was given by the defendants, tending to prove that the said Merriam, before his pinchase of the plaintiff, had ceased to ac‘ as their agent, and that the purchase was made on his own account. Now the plaintiff was bound to satisfy the jury that said Merriam was the defendants’ agent, and that the purchase was made on their account. And if, upon the whole evidence, the jury were in doubt as to either of these facts, the defendants were entitled to a verdict in their favor. The plaintiff was bound to prove a sale to the defendants; and there is nothing, in the case reported, to shift the burden c proof. The jury should have been instructed, that if they doubted whether the sale was made to P. R. Merriam on his own account, or on account of the defendants, he being their agent, they should find for the defendants.
¶2New trial granted.