The action is for the recovery of the value of goods to the amount of $165.25, sold by the plaintiff, and delivered to a third party, (Dobson,) by the authority, as is claimed, of the defendant, J. A. Wright, and upon his absolute promise to pay for the same. The jury returned a verdict for the plaintiff for the amount claimed. The court ordered a new trial in favor of the defendant, unless the plaintiff should consent to reduce the recovery to the sum of $25, and interest. The plaintiff appealed.
The order should be affirmed. Whatever authority the respondent gave for the delivery of goods to Dobson, and whatever contract he entered into with the plaintiff, was through one S. H. Wright, as his agent. The evidence was insufficient to show that S. H. Wright was a general agent of the respondent at the time of the transaction in question, and the proof of his special agency only went so far as to show that he had authority to contract for the sale of goods to the extent of $25. It is said on the part of the appellant that', as the respondent did not except to certain instructions of the court to the jury, to the effect that the evidence was sufficient to justify a verdict for the recovery of the amount claimed, such instruction is conclusive for the purposes of this case, and the question of the sufficiency of the evidence should not afterwards have been reconsidered by the court. In answer to this, it is enough to say that by exceptions to certain instructions given to the jury at the request of the plaintiff, and particularly the fourth, the defendant preserved his right to call in question the sufficiency of the evidence.
Order affirmed.