The opinion
McAllister, j.,
dissenting.
In my opinion the instruction given to the jury, quoted in the majority opinion, is erroneous. The first paragraph told the jury that if Tuttle looked to Bonneville Equipment Co. to pay the bill only if the McKinleys did not pay the bill, then Tuttle could not recover unless there was a written agreement.
In the third paragraph of the quoted instruction, however, the court told the jury with equal clarity that if Tuttle in making the repairs relied on the credit of Bonneville Equipment Co., then the jury should find for Tuttle. This was an instruction to find against *158 Bonneville even if Tuttle relied primarily on the Mc-Kinleys and only secondarily, collaterally or incidentally on Bonneville. The third paragraph of the instruction was clearly erroneous. Masters v. Bidler, 101 Or 322 , 198 P 912 (1921).
The defect in this instruction was called to the attention of the court by a proper exception, and the case should be reversed.
I dissent.
Sloan, J., concurs in this dissent.