delivered the opinion of the Court:

It was not error to permit the plaintiff to testify to the fact that he made a memorandum.

The court gave the case to the jury, following the law as laid down in the former opinion.

Error is assigned upon the refusal of an instruction asked by the defendant. This relates to the good faith of Groomes, provided it was shown that he was the agent of DuPerow.

There was no error in refusing the instruction, as it was not supported by the evidence. The question submitted to the jury was one of fact, on which there was a conflict in the evidence. The jury found for the plaintiff.

The judgment must be affirmed with costs. Affirmed„