In this case plaintiff, a surety company, sued its agents for damages alleged to have been caused by the latter exceeding their authority in
The judgment of the trial court in granting a new trial must be affirmed. Where the trial court exercises its discretionary power of setting aside a judgment on the ground that it is against the weight of the evidence its action in so doing will not be reviewed except upon a showing that no verdict in favor of the party to whom the new trial is granted would be allowed to stand. [Casey v. St. Louis Transit Co.,
Plaintiff claims that is precisely the situation here; that the evidence clearly shows that defendants are liable. Plaintiff’s case does not rest entirely upon defendants’ admissions, however. It rests to some extent upon plaintiff’s testimony. To entitle plaintiff to a judgment this must be believed by the trier of the fact. But the trier of the fact has said the finding is against the weight of the evidence. If plaintiff had been granted a new trial and defendants were claiming that no verdict for plaintiff could ever be allowed to stand, this court might very well pay heed to the claim if, after admitting everything plaintiff claimed, no case appeared. In that case no new trial should be granted. It is different, however, when defendant is granted a new trial.
But on the theory that defendants’ admissions and testimony may be sufficient to authorize a judgment as a matter of law, still plaintiff has not shown such to be the case. The evidence itself is not presented in full to this court. It is only plaintiff’s conclusion as to what- that evidence is that has been presented. Before the appellate court could pass on the
It is true that, as between the principal and his agent, much more is necessary to show ratification than is required to constitute ratification as between the principal and third persons dealing with the agent. [31 Cyc., 1266.] But even though an agent has violated his instructions, he will not be liable to the principal if the latter with knowledge of the facts ratifies what is done; and such ratification may be express or implied. [31 Cyc. 1456.] ¥e do not agree with plaintiff in its contention that the course of conduct claimed by defendants to have been pursued, both before and after the signing of the bond in controversy, could not under any circumstances amount to a ratification sufficient to show that what defendants did was in fact by authority even though it had theretofore been formally forbidden. Whether it was so done was a question of mixed law and fact. Where a jury is waived and the issues of fact are submitted to the court all presumptions are in favor of the correctness of the court’s findings upon the questions of fact involved. [Donaldson Bond & Stock Co. v. Houck,
It follows that the judgment must be affirmed. So ordered.