No. 24.

#### C. Aultman & Co. v. G. A. Van Duyn & Co.

A suit to recover the purchase price of certain machinery which it is alleged defendants in error—as the agents of plaintiffs in error—sold to E. DcGoria, and for which they failed to take proper steps to secure the payment from DeGoria whereby the purchase price was wholly lost. The duties of the agents were clearly set forth in a written contract. It was the duty of the jury, under proper instructions to find, first, whether the agents made the sale, and if so, whether they did or did not perform their duty in substan*656tial accordance with their contract, for it alone measured and determined their duties, and whether they exceeded or fell short of ordinary care and caution was not material. As the court below in the instructions as to the agents’ liability made it depend upon whether they used ordinary care, the case is reversed.

Judge below, J. J. Phillips.

Attorneys, for appellants, Messrs. Patton & Hamilton,

For appellees, Messrs. Stuabt, Edwiards & Bbown.

Opinion filed Dec. 4, 1886.

Opinion by Conger, J.