The opinion of the court was delivered, July 2d 1873,by

Two views are presented by the evidence in this case. The one claimed by the defendant in error, that he made the bargain with the Pennsylvania Railroad Company for the sale and conveyance of his property, and his arrangement with the plaintiff was merely to pay him, out of the proceeds, the sum which he owed him; but that the plaintiff received and retained more *172than that sum. The other, claimed by the plaintiff that he was to have all the property sold for, exceeding the sum of $13,000, in satisfaction of his demands against the defendant; so that he was entitled to take and retain the same whether it was more or less than the defendant’s existing indebtedness to him.

The learned judge appears to have substantially accepted the defendant’s view of the case, and practically to have withdrawn! all the plaintiff’s evidence from the consideration of the jury. In this we think he erred.

The evidence given by the plaintiff was clearly sufficient to have been submitted to the jury. The defendant testified : “ Herr was my counsel; I can scarcely tell what I did say; I got Haines to help arrange the business.” Again he said: “I do not know through whom the arrangement was made.”

Haines testified: “ Thompson said he was in trouble ; Bergner had issued executions against him; said Herr was his attorney; said he wished me to help to get this fixed up; Herr spoke of arrangements through Bergner; we went to Bergner.” Herr testified : “ I was acting as attorney for Thompson ; Haines often came as Thompson’s friend; don’t know if an agent or not; we went to see Bergner; Haines proposed to have this settled; said to Bergner, Will you give $13,000 for the hotel property, cancel the judgments and burn the books ? Bergner agreed to it; Thompson said he would make the deed to the Pennsylvania Railroad Company, not to Bergner; deed not then filled up ; he said he wanted it made to the company, not to Bergner.” Herr, upon being recalled, testified, “ Thompson sold to the Pennsylvania Railroad Company; Bergner did not wish to buy, but concluded would sell to Pennsylvania Railroad Company ; Bergner went to Philadelphia; my recollection is, Haines said, ‘Will you give $13,000, cancel the judgments, and burn the books ?’ The $13,000 distributed was among Thompson’s creditors; the $13,000 was paid on the docket in addition to the $7000; we discovered a mortgage open on the property, due Niningcr from some former owner; the company was then indemnified by bond.’

The defendant testified: “ Haines came to have these difficulties settled; ‘Will you, give $13,000, discharge all of your claims, and burn the books?’ I said I would do it; and to save additional expense, Thompson was to make a deed to the company for $20,000 ; I agreed to give them the title for $20,000; I agreed to give $13,000, cancel all claims, and burn the books ; I effected the sale at $20,000 ; I had to wait for what was due to me; Hall attended to the conveyance; I had no further trouble; Nininger had a mortgage, $12,000 or $14,000, not discharged; Hall refused to counsel the sale till that was removed; I agreed to indemnify the company by a bond; Herr became my surety in double the amount *173of the balance of the mortgage; I received'my $7000 from the Pennsylvania Railroad Company, and the rest went to Thompson’s creditors; judgments were satisfied, and books credited in-full.”

Here certainly is some evidence of authority given to Haines, as well as subsequent ratification of his acts. Whether it is sufficient under the whole evidence to establish the plaintiff’s view of the case the jury should decide. Under proper instructions it should be submitted to them. The other assignment of error is not sustained.

Judgment reversed, and a venire facias de novo awarded.