38 FEDERAL REPORTER.
solely liable therefor to the plaintiffs, and in that event he would
have the right to sell the same to the defendant, or any other per-
son; and if you should und such to be the state of the case, your
verdict should. be for the defendant.
These are precisely what the defendant insists were the facts in
connectionwith the transactions between Wirth and the plaintiffs;
that is, that he had no authority to act for the defendant, and did not
assume to act for it; that he made the purchases in the usual course
, of business for himself and in his individual right, and not for the
use and benefit of the defendant; that he gave his acceptances there-
for, expecting to pay them when due; and that he sold the property
afterwards in good faith to the defendant, receiving actual payment
_ therefor in the way of credits on certain indebtedness he was owing
to the defendant. If this be so, then, obviously, the plaintiffs can only
look to Wirth for payment of their debt.
On the other hand, it is contended by the plaintiffs that the real
party in interest in these transactions was the Meadow Spring Dis-
tilling Company; that Wirth was the president of the company, and
really made these purchases for the use and benefit of the company,
and that, as originally contemplated, the defendant had the use and
benefit of the property; that on its arrival in Milwaukee the malt _
and barrels passed directly into the possession of the defendant ; and
that the alleged sale of the property from Wirth to the defendant was
but a cover to disguise the transaction, and to enable the company to
apply the property upon Wirth’s prior indebtedness on account of
stock in the corporation, without paying the plaintiffs therefor. Va-
rious facts and circumstances are relied on in support of this conten-
’ tion, and have been called to your attention. If the transaction was
of the character thus claimed, it will doubtless be your pleasure, as it
certainly would be your duty, to unmask it, and place the liability for
this property where in such state of thecase it would belong.
In examining these transactions you will apply to them, in the light
of the evidence, the test of reason and good sense. Which theory of
the case is best supported by credible testimony, and‘by such reason-
able probabilities as you would naturally take into consideration in
ascertaining the real character of a business transaction? Which
theory is most consistent with good faith, andwith the way in which
business men would ordinarily be expected to do business under sim-
ilar circumstances ? These are points of inquiry pertinent to the issue
to be decided by you, and it is your duty to look into all the circum-
stances of the transactions in dispute, and upon the whole evidence,
_ 4 and under the instructions given you by the court, determine what the
rights of the parties are. If you find the plaintiff Pope entitled to
recover, the measure of his recovery would be the value of the malt
at the time of the sale, and I do not understand it to be disputed that
‘ such value was the purchase price, namely, $1,255.78; and if you
t find the plaintiff Ryan entitled to recover, the measure of his recovery