In this case the Metropolitan Distributing Company brought suit against Morris Snyder, the drawer, and Samuel R. Laden, the payee and indorser, of a check, to recover $5,000, the amount thereof. The case resulted in a verdict against both men for the full amount, and, on entry of judgment on the verdict, this writ of error was sued out.

As the case was tried, we do not think the decisive, underlying issue was submitted to or passed on by the jury, and as it goes back for retrial we deem it proper to point out that issue, with a view to aiding in the future retrial, rather than of now entering on a detailed discussion of the assignments of error in the past trial.

Turning, then, to the proofs, there was testimony which tended to show that the plaintiff, the Metropolitan Distributing Company, a corporate citizen-of the state of New York, was, on August 19, 1920, the owner of 1,000 cases of bottled in bond whisky, which was stored in a United States bonded warehouse at the distillery of the A. Mc-Ginnis & Co. at Carrollton, Md. This whisky they were willing to sell at $30 per case, f. o. b. distillery, the buyer “to deliver to seller or distillery a properly authenticated United States internal revenue purchase permit in the name of A. McGinnis & Co., of Carrollton, Md.”

Laden, one of the defendants, was a broker, and with a view of earning a commission of $1 a case on the whisky, he approached the plaintiff company to ascertain whether, if the whisky was bought by Sny*338der, the other defendant, at $31 per case, he (Laden) would get a commission of $1. This being agreed to by the plaintiff company, Laden indorsed and turned over to the plaintiff company a check of even date for $5,000, drawn by Snyder, the other defendant, and a paper in the form of a receipt, signed by the plaintiff and marked “Accepted, Samuel R. Laden,” was passed between the parties. This paper, which is in the form of a receipt, recites in substance that the plaintiff has “received from Sam Laden * * * a check for $5,-000, issued by Morris Snyder and indorsed by Mr. Sam Laden, as part payment for 1,000 cases McGinnis whisky bottled in bond at $30 per case, f. o. b. Distillery.” This paper, it will be observed, fixed the price of the whisky, as between the plaintiff and Laden, at $30 per case,'and in that regard tends to support the contention that its purpose was merely to evidence the agreement of the plaintiff that Laden was to receive $1 per case as a commission, if Snyder bought at $31.

At this point we note that the contention of Laden, as above stated, namely, that the paper was simply a part of the whole transaction, and was merely intended to secure him a $1 commission in case Snyder bought at $31, and that, as Laden contends, he was a mere broker, a “go-between,” as he expressed it, between the plaintiff and Snyder, becomes all-important, for the contention of the plaintiff is that Laden was the real and only purchaser, and that the $5,000 check of Snyder was paid by Laden to the Distributing Company as part payment for the whisky sold him; that the plaintiff had no dealings with Snyder, and was therefore an innocent holder for value of Snyder’s check, and under the New Jersey statute (3 Comp. St. 1910, p. 3742, § 61), as quoted in the margin1 was entitled to recover for the check. This underlying and all-important question of fact, namely, whether there was a sale by the Distributing Company to Laden, or whether the sale was made by the Distributing Company to Snyder, was not submitted to or passed on by the jury. Its decisive relation 'to the controversy is apparent on two grounds: First, if the paper was only a part of the whole transaction, and its purpose was, as between the plaintiff and Laden, to fix the' commission, and Laden was the broker,, agent, or “go-between,” to sell the whisky to Snyder at $31, and the sale was in reality a sale by the Distributing Company to Snyder, then, Laden being the agent of the plaintiff, and indorsing and turning over to his principal the check which had come into his hands as such agent, he should not be held as an indorser, within the meaning of the statute; and, secondly, if Laden was acting as the agent, broker, or “go-between” to effect a sale by the plaintiff to Snyder, then the check, coming into the hands of the plaintiff’s agent, Laden, .and subsequently into its hands through such agent, as a payment on account of its sale to Snyder, Snyder could stop payment, because the New Jersey *339act did not prevent his doing so. But in such case the. seller had the right to refuse to perform the contract, and sue for full payment and performance. Seeing, then, the significance of this underlying issue of the sale, whether one to Baden or one to Snyder,, the materiality of showing the whole transaction, the fact that the plaintiff knew of the ■whole transaction, that Snyder was the real buyer, that the check was not turned over to the plaintiff until after Snyder had agreed to buy at $31, that an additional paper was drawn whereby Snyder was to pay $31, all became proper matters of proof. In this regard the significance of the record, and the relevancy of the excluded testimony, becomes clear when the record, quoted in the margin, is examined.2

*340Such being the proofs, it is clear there was testimony tending to show that Snyder, and not Laden, was the real buyer from the plaintiff, and that the check was received by. Laden as the agent of the plaintiff, and was not delivered by Laden to the plaintiff as part payment on a sale made by the plaintiff-to Laden. And such testimony should have been admitted in full, the jury instructed that if they so found, and the real transaction was a sale by the Metropolitan Distributing Company to Snyder, and that the check, while given in form to Laden, was in reality given to the Metropolitan’s agent, Laden, .as a part payment on the sale by the Metropolitan to Snyder, then and. in that event the transaction was in substance not different than if the check had been given by Snyder direct to' the Metropolitan, and therefore liable to stoppage before payment, and that, having been stopped, the Metropolitan could then repudiate the sale, because the hand money was not paid, or stand upon the contract with Snyder and sue him for the breach.

The judgment is therefore reversed.