(after stating the facts). The facts are not in dispute. One J. A. Fuller carried on a brokerage business at Hancock and other places, under the name of J. A. Fuller & Co. Respondent was a clerk and bookkeeper, employed by Fuller at $80 per week. Fuller employed two other persons in the office, named Roberts and Penberthy. Mr. Fuller was in his office most of the time. Miss Hansen had purchased stock through Fuller & Co. twice before. She had no acquaintance with Mr. Ritchieotherwise than on these two occasions and the one in question. Mr. Ritchie had authority to receive orders for his principal for the purchase of stock. Orders as they were received were turned over to Mr. Roberts through whose hands “ all purchases or sales of stock had to go.” Ritchie had no other connection with Fuller & Co. otherwise than as clerk. Miss Hansen asked for Mr. Ritchie when ordering the stock in question, because she had done business with him before. She knew that Fuller & Co. carried on a brokerage business. She went to the office of J. A. Fuller & Co She gave a verbal order through Mr* *443Ritchie for 10 shares of the stock of the Mohawk MiningCompany. Receiving notice from Fuller & Co. the following day that the stock had been purchased, she went to the office again, saw Mr. Ritchie, paid him the money, and took the receipt above set forth, which, as to the parties thereto, constituted a sufficient agreement under the statute. The money was deposited in the bank, in the due course of business, to the credit of J. A. Fuller & Co. Ritchie made no profit out of the -transaction. The stock was not bought, and all the money in the bank was checked out in the name of J. A. Fuller & Co. Fuller failed. Fuller signed all the checks that were drawn upon the bank in the name of J. A. Fuller & Co. He left blank checks in the office to be filled out by Ritchie and others, as occasion might require. Ritchie made no representations to Miss Hansen that he was acting independently of his employer. Nothing was said or done by either party from which it can be inferred that Miss Hansen understood that she was dealing with Ritchie as her agent rather than with J. A. Fuller & Co. through Mr. Ritchie as Fuller’s agent.

The court instructed the jury that if Gilbert Ritchie was the agent of Miss Hansen, and received the money as her agent, and gave a receipt to her expressing the purpose for which the money should be applied as her agent, and intentionally appropriated the money to- some other purpose, then respondent was guilty. To sustain a conviction under the statute it was essential for the prosecution to prove an agreement made between Miss Hansen and the respondent in his individual capacity. An agent making an agreement in the name of an actual bona fide principal and duly authorized to make such a contract, is not within the statute. The record is barren of any proof showing that Miss Hansen understood that she was dealing with the respondent as a principal. The contract on its face showed that she was dealing with J. A. Fuller & Co., brokers. There is no proof that she believed, or even had a right to believe, that she was dealing with respond*444ent in his individual capacity. The court should have directed a verdict of acquittal. It is unnecessary to'discuss the other questions raised.

Conviction reversed, and new trial ordered.