| Or. | Nov 30, 1909
delivered the opinion of the court.
1. It is claimed by the defendant that he cannot be held personally liable in this action because he acted as agent of A. C. Ruby & Co., but we cannot assume.in the face of the testimony that such fact was established. The mere fact that he took notes from the plaintiffs, payable to A. C. Ruby & Co., while a circumstance tending to corroborate his contention, is not conclusive. It is not unusual for a person dealing on his own account to take paper payable to a third party.
2. The evidence of plaintiffs tended to show that he was acting on his own account, and, as the testimony was contradictory, the matter was within the province of the jury, which must have found with the plaintiffs upon that contention.
3. It is also claimed that the damages are excessive, and that only nominal damages should have been- given, as there was no evidence as to the value of the horses. The plaintiffs offered to show the value of the animals, but upon the objection of defendant, this testimony was excluded. While this error of the court prevented plaintiffs from fully presenting their case, there is an admission in the pleadings that furnished the jury a fair basis for estimating the value of the black stallion. The complaint alleges this stallion was worth $2,000. The answer denies that it was worth $2,000, “or any greater sum than $-The words last quoted add nothing to the extent of the denial, which practically admits the value of the stallion to be any sum less than $2,000. If the jury believed plaintiffs’ testimony, as they evidently did, that defendant had their note for $1,200 and their horse, and they had received nothing in return, the verdict was exceedingly moderate if plaintiffs were entitled to recover at all.
4. Several objections are made to the rulings of the court upon the admission and rejection of testimony, but we are of the opinion that none of them are well taken.
Error is alleged on account of the ruling of the court allowing signatures especially prepared for the purpose to be submitted to certain experts on handwriting who were called by defendant to prove the genuineness of the signatures of plaintiffs to certain alleged contracts with Ruby & Co. No exception was saved to the ruling of the court on this subject, and it is therefore not before us.
The judgment of the lower court will be affirmed.
Affirmed.