ADOLPH MULLER, Respondent, v. ROBERT ROGERS et al., Appellants, 1 Cal. Unrep. 451

SAWYER, C. J. The action is to recover - damages for injuries during the transit to two bales of furs, which plaintiff alleges that defendants agreed to carry from San Francisco to Hamburg. The only serious question in the case is, whether the evidence is sufficient to show a contract, on their own account, by the defendants, to carry the goods.

The plaintiff, himself, in his testimony, says: “Defendants are the agents of the West India and Pacific Steamship Company, Limited; I knew it, when I shipped these goods; I acted with them as sueh agents.” There is nothing in this evidence in any degree in conflict with this testimony of the plaintiff. There is other testimony tending strongly to show that defendants acted in the making of a contract to carry the goods, but it does not purport to state the character in which they acted, whether as principals, or agents.

There is other testimony tending to show that they were commission merchants only, and had no interest, as owners, in any of the companies which actually took

part in the carriage of the gocüs, and that they were, in fact, acting as agents of the West India and Pacific Steamship Company.

But when the plaintiff on cross-examination comes to state the character in which defendants contracted, he says they were agents; that he knew it when he shipped the goods, and he “acted with them as such agents.” Upon his own uncontradicted statement of the character in which he dealt with the defendants in the transaction, that is, as agents, we do not see how the jury could properly find that they contracted as principals, and they must have so found, or the verdict would necessarily, on the evidence, have been for defendants.

If they contracted in the character of agents of the West India and Pacific Steamship Company, with the knowledge of plaintiff, the contract was the contract of the company, and not of defendants, and the company is the party liable. As the evidence is all one way on this point, the verdict cannot be sustained. The judgment and order denying a new trial must be reversed on the ground indicated, and a new trial had; and it is so ordered, and remittitur directed to issue forthwith. We concur: Sanderson, J.; Sprague, 'J.; Crockett, J.; Rhodes, J.