Opinion,

The motion in arrest of judgment seems to have been founded mainly on the claim that while the action was in trespass, the statement set forth merely a breach of contract, and did not aver that defendant was the plaintiff’s agent. But this *265view cannot be sustained. The statement does not use the word agent, but it does aver an agency when it sets forth the employment of defendant by the plaintiffs. It then proceeds to state the facts that defendant had in his hands sufficient funds for the agreed purpose, and his negligent failure to pay them over. Then follows the averment of the consequent damage to plaintiffs by having to pay the Shoemaker mortgage over again. The statement contains all the essential elements of a declaration for negligence and leaves the defendant in no doubt as to just what is claimed of him, and why. It is in fact a rather favorable specimen of pleading, under an act which enjoins disregard of form and invites looseness.

Apart from this, there is nothing in the case but a question of fact. It was the unfortunate case of defendant’s confidence in a man of good reputation assuming to be the agent of another, and payment to him when in fact he had no authority to receive the money. There were two grounds of defence; the absence of any employment or duty on the part of the defendant to the plaintiffs, and express direction by them to pay the money to Cowden. On both these questions, there was conflicting evidence and the learned judge left them to the jury with clear and emphatic instruction that if they found either one in favor of defendant he was not liable. The judge then discussed the case on the alternative view that the jury might find the agency and not find any express direction to pay to Cowden, and explained the negligence which would make the defendant liable, either as a paid or a voluntary agent, under the circumstances, including in the latter the general reputation of Cowden in the community at that time, as a man of honesty and business credit. Of the instructions on the subject of negligence the defendant, at least, has no just ground of complaint.

Nor was there any error in the treatment of the documents referred to in the eighth assignment. The affidavit to open the Shoemaker judgment was based on the information and averment that Cowden had paid the money over to Shoemaker. If that was true it was a good defence, whether Cowden had been authorized to receive the money or not. As the learned judge said in his charge, the affidavit does not state whether the plaintiffs paid to Cowden in person or through defendant *266as their agent, and certainty contains no admission of either authorization or ratification of defendant’s action, as between him and them. So with the bill in equity against Cowden’s representatives. It was filed after this suit was commenced, and with the express reservation that it was to be without prejudice to rights against other parties, meaning the defendant, for mis-payments to Cowden. In fact, both the effort to open the Shoemaker judgment and the bill against Cowden were efforts in relief of the loss, and therefore of defendant’s responsibility, and as the evidence in regard to them was undisputed, the judge was right in instructing the jury definitely as to their weight in the cause.

It is no doubt, as the learned court below said, a hard case for either party to have to bear the loss; but the jury have put it upon the defendant, and there was no error in the way the question was submitted to them.

Judgment affirmed.