90 Ark. 104 | Ark. | 1909
(after stating the facts). It is earnestly insisted by counsel for appellant that there is no evidence in the record tending to show that Harbin was ever an agent of the Ayer & Lord Tie Company, and that the acts-, admissions or declarations of Harbin are not competent to prove his agency. While it is true -that in an action against the principal the declarations or admissions of the agent are not competent to prove the agency, the rule has no application here. No attempt was made to prove Harbin’s authority by his declarations or admissions. Harbin was a witness in the case, and his testimony was of matters of which he stated he had knowledge. If he knew the facts concerning the extent of his authority, his testimony was as competent on that point as that of any other witness having knowledge of the same facts. The point was expressly so ruled in the case of Beekman Lumber Co. v. Kittrell, 80 Ark. 228.
The testimony of Harbin to the effect -that he was sent down there to start the mill up and have it logged, in connection with his further testimony that the skidway was necessary for this purpose, was sufficient testimony from which the jury might infer that he had the authority to make the contract sued on.
Counsel for appellant also assigns as error the action of the court in giving the following instructions:
“No. 3. Although you believe from the evidence that Pitney agreed to pay plaintiff $15 for building a skidway, still if you find from the evidence that a new and different contract was made by the plaintiff and Harbin, who was in the employ of the defendant, whereby a different sum was to be paid for different work, the defendant would be liable, if you find that the work was done by the plaintiff for defendant under the last contract, and defendant ratified same by receiving the benefit of the labor.
“No. 4. It was agreed by the plaintiff and the defendant •company, or its agent, Mr. Pitney, that he was to build a certain skidway, made in a certain manner, for $15, then he could not recover more -than,, $15 for building it, although it might work a hardship on him; but if you find that, after they started to build it, an agent of the company, or one • acting as the agent of the company, wanted a change or additions made to it, and promised to pay him for these additions, and he did make changes and additions different from the first contract, and did the work, and the company received the benefits of it, then he would be entitled tq whatever additional changes in the work was worth.”
We think these instructions should not have been given. There was no testimony upon which to base a finding that there was a ratification óf any contract made by Harbin. Counsel for appellee insist that the using of the skids after they were built was a ratification. The company’s conduct in this respect was not inconsistent with any other hypothesis than that of approval of Harbin’s acts. The skidway was there, and was necessary to be used in logging the mill. We do not think the mere use of the skids by appellant would amount to a ratification of Harbin’s acts. The instructions then were purely abstract. It has been repeatedly held by this court that instructions are given by the court for the purpose of aiding the jury in arriving at a proper determination of the issues presented to them. Instructions which are not applicable to any state of facts are abstract and misleading when they are foreign to the issues. It can not be determined here whether the jury found for the appellee because they believed Harbin made the new contract and had authority to make it, or because they believed the appellant ratified his unauthorized contract. Hence the instructions were prejudicial.
“It is prejudicial error to give an instruction based on a hypothesis unsupported by the evidence, where such instruction is calculated to confuse the jury and divert their minds from ■the real issue in the case.” St. Louis, I. M. & S. Ry. Co. v. Woodward. 70 Ark. 441; St. Louis, I. M. & S. Ry. Co. v. Denty, 63 Ark. 177; St. Louis, I. M. & S. Ry. Co. v. Puckett, 88 Ark. 204.
For the error in giving instructions Nos. 3 and 4, the judg- ■ ment is reversed and the cause remanded for a new trial.
