Opinion
Opinion filed January 28, 1953.
Partnership. In action against individuals doing business as department store for value of goods ordered by member of firm who had not placed order for similar goods for two years, and who receipted for such goods, when they were delivered after he had withdrawn from store and started own store in same building, defendant individuals were entitled to requested instructions on theory that former member of firm had no authority to purchase goods for store.
Appeal from the Circuit Court of Laclede County. — Hon. Claude E. Curtis, Judge.
REVERSED AND REMANDED.
Donnelly Donnelly, Robert T. Donnelly, and Phil Donnelly, of Lebanon, Attorneys for appellants.
1. The trial court erred in refusing to sustain appellants' motion for a directed verdict at the close of all the evidence; erred in refusing to direct a verdict for appellants, and erred in refusing to instruct the jury to return a verdict for appellants for the reason that under the pleadings probative force that Leland Johnson was authorized to act in appellants' behalf at the time of the transaction in question, nor was there any evidence of probative force that appellants knew of any action by Leland Johnson in their behalf, nor was there any evidence of probative force that appellants performed or failed to perform in any way which would estop them from denying liability to respondent in connection with the transaction in question. The trial court should not have submitted the case to the jury because respondent did not sustain the burden of proof incumbent upon him, and the trial court should not have entered judgment for respondent under the evidence presented. In other words, respondent did not prove that appellants owe respondent any money. (1) Respondent did not even attempt to prove that any of appellants contracted for the goods in question. On the contrary, respondent proved that the goods were contracted for by Leland Johnson, who is not a party to the suit. (2) Respondent did not even attempt to prove that, at the time of the transaction in question, Leland Johnson was a partner in the partnership doing business as Johnson's Department Store, which partnership appellants formed and operated. (3) If respondent proceeded on the theory that Leland Johnson bound appellants by virtue of the fact that Leland Johnson was a former partner in a former partnership known as Johnson's Department Store, of which appellants were also partners, the court was in error in allowing respondent to go to the jury on such a theory because it is settled law that when a partnership is dissolved, one former partner cannot bind the other former partners to obligations to third persons incurred by him after dissolution of the partnership. 40 A.J., Section 274, page 319; Hall v. Lanning, 91 U.S. 160, l.c. 170, 23 Lawyers' ed. 271. (4) If respondent proceeded on the theory that Leland Johnson bound appellants by virtue of the fact that respondent thinks Leland Johnson was an agent of appellants, the trial court erred in submitting the case to the jury on said theory because: (a) Respondent failed to plead the ultimate fact that Leland Johnson was acting as appellants' agent at the time and place in question. Sec. 509.050, R.S. of Mo., 1949; Devault v. Truman et al., 194 S.W.2d 29, l.c. 31, 32. (b) Respondent failed to establish that Leland Johnson was acting as appellants' agent at the time and place in question. The burden of establishing agency rests on the party by whom it is alleged and the facts to establish it must be given their reasonable and natural construction. Schneider v. Dubinsky Realty Co. et al., 127 S.W.2d 691, l.c. 694, 344 Mo. 654. Agency cannot be established by proof of alleged agent's acts, declarations and conduct, unless known to principal or so often repeated that principal's knowledge thereof is implied. Fair Mercantile Co. v. Union-May-Stern Co., 221 S.W.2d 751, l.c. 754; Stevens Davis Co. v. Sid's Petroleum Corporation, 157 S.W.2d 246, l.c. 249. A verdict of a jury cannot stand unless based upon substantial evidence. Carpenter v. Wabash Ry. Co., 71 S.W.2d 1071, l.c. 1072. 2. The trial court erred in refusing to give Instruction "A" (T.270) on the part of appellants d/b/a Johnsons' Department Store, for the reason that recovery could not be had against appellants unless Leland Johnson was acting in behalf of appellants at the time of the transaction in question. Instruction "A" would not have been proper had respondent proved that Leland Johnson's alleged acts and conduct were either known to appellants or were so often repeated that appellants' knowledge thereof could be implied. Fair Mercantile Co. v. Union-May-Stern Co., 221 S.W.2d 751, l.c. 754; Stevens Davis Co. v. Sid's Petroleum Corporation, 157 S.W.2d 246, l.c. 249. The testimony shows that Mr. Mass. testified (T. 44) that he had seen Leland Johnson in respondent's establishment a few times, and that purchases had been made for Johnson's Department Store. However, Mr. Mass. testified upon cross-examination (T. 61) that no shipments were made by respondent to Johnsons' Department Store from the year 1947 to the date of trial, except the shipment in dispute contended by respondent to have been made to Johnsons' Department Store, and contended by appellants to have been made to the Fashion Shop. Mr. Mass. testified (T. 62) that no shipments were made in the year 1948; that the disputed shipment was made May 12, 1949, and that no shipments were made thereafter. All of the appellants testified that the transaction in question was made without their knowledge. No testimony was produced to the contrary by respondent. The question then becomes whether Leland Johnson's alleged acts were so often repeated that appellants' knowledge could be implied. Certainly respondent could not possibly contend that such was the case in face of the aforementioned testimony by its manager, Mr. Mass, that the disputed shipment was the only shipment made by respondent to appellants from the year 1947 to the date of trial. Consequently, appellants submit that the question resolved itself into one of authority, and that appellants were entitled to submit the question of authority to the jury, and that the trial court's failure to submit said instruction was error. Appellants were entitled to have their theory of the case submitted to the jury. State ex rel. and to the use of Dunklin County v. McKay et al., 30 S.W.2d 83, l.c. 92, 325 Mo. 1075; Delametter v. Home Insurance Company, 126 S.W.2d 262, l.c. 270. The failure of the trial court to give Instruction "A" as requested by appellants was reversible error. 3. The trial court erred in refusing to give Instruction "B" (T. 270-271) on the part of appellants d/b/a Johnsons' Department Store, for the reason that under the law and the evidence, as summarized above in Point 2, appellants were entitled to have the question of authority submitted for the jury's consideration. Certainly under the law and the evidence it is true that even if Leland Johnson purchased the goods and merchandise referred to in evidence, it devolved upon respondent to prove that Leland Johnson was authorized by appellants to purchase said goods and merchandise before respondent would be entitled to recover. As a result of the failure of the trial court to submit Instruction "B" and Instruction "A", as set out in Point 2, appellants were deprived of their proved defense, namely, that Leland Johnson was not authorized to purchase any goods or merchandise in behalf of appellants at the time of the transaction in question. The result was that the trial court allowed the jury to find for respondent, even though there was no proof that any of appellants purchased the goods in question, and even though the jury was not instructed that a lack of authority on the part of Leland Johnson to act for appellants would preclude respondent from recovering from appellants. Appellants were entitled to have their theory of the case submitted to the jury. State ex rel. and to the use of Dunklin County v. McKay et al., 30 S.W.2d 83, l.c. 92, 325 Mo. 1075; Delametter v. Home Insurance Company, 126 S.W.2d 262, l.c. 270. The failure of the trial court to give Instruction "B" as requested by appellants was reversible error. 4. The trial court erred in giving Instruction No. 1 (T. 273-275) on the part of respondent because said instruction was not based on the evidence, and there was no evidence to support it; and said instruction is against the law and the evidence. There was no evidence that "Leland Johnson had on several occasions purchased goods and merchandise from the plaintiff and in the name of Johnson's Department Store in Lebanon, Missouri, and that on each of said occasions said goods and merchandise had been shipped to and received by Johnson's Department Store, Lebanon, Missouri, and thereafter paid for by said Johnson's Department Store." This was a theory respondent tried to inject into the case, but there was no evidence to support it. Respondent's evidence did not show that Leland Johnson had on several occasions purchased goods and merchandise from respondent and in the name of Johnsons' Department Store. Nor did respondent's evidence show that Leland Johnson had ordered goods sent to Johnsons' Department Store in Lebanon, Missouri, nor did it show that "on each of said occasions" said goods and merchandise had been shipped to and received by Johnsons' Department Store in Lebanon, Missouri; nor did said evidence show that thereafter it was "paid for by said Johnsons' Department Store." The evidence was that Leland Johnson had never been in respondent's place of business except the one time when he ordered the goods in question, and those goods were ordered, according to his testimony, for the Fashion Shop, which was operated by Leland Johnson and Clint Johnson. The respondent failed to prove that Leland Johnson had any authority from the appellants, W.T. Johnson, W. Ray Johnson, Franklin Elwin Johnson and Paul Johnson, doing business as Johnsons' Department Store, to purchase any merchandise for said appellants, d/b/a Johnsons' Department Store, or that he had any authority to charge merchandise to the said Johnsons' Department Store, or to bind or obligate said Johnsons' Department Store in any manner. Said appellants, d/b/a Johnsons' Department Store, denied that they purchased any of the goods in question and denied that they had been in respondent's place of business. In fact, respondent's testimony showed that the appellants, d/b/a Johnsons' Department Store, had traded with respondent only occasionally for the past several years. The testimony showed that appellants, d/b/a Johnsons' Department Store, operated a Men's Store, and did not sell dresses or ladies' apparel, which was the kind of merchandise respondent is supposed to have sold Leland Johnson. An instruction which does not conform to the proof is erroneous, and its submission to the jury is reversible error. Clarke v. Jackson, 116 S.W.2d 122 l.c. 124. Instruction No. 1 is further erroneous in that it stated, "and this is true even though you may also find that thereafter said goods and merchandise were turned over by said Johnsons' Department Store to another establishment referred to in evidence as The Fashion Shop." This assumes that the goods in question were delivered by the Railway Express Agency to Johnsons' Department Store, and that Leland Johnson had authority to receive said goods for and on behalf of the Johnsons' Department Store, all of which were denied by appellants, d/b/a Johnsons' Department Store. An instruction which assumes controverted facts is erroneous and its submission is reversible error. Taylor v. Kansas City 112 S.W.2d 562, l.c. 567. Said instruction is further erroneous in that it is confusing, misleading and contradictory, and injects matters in the instruction that are not supported by the evidence; and gave the jury a roving commission to speculate upon facts without supporting said facts by evidence. An instruction which is ambiguous or misleading is erroneous and its submission to the jury is reversible error. Freeman v. Berberich, 60 S.W.2d 393, l.c. 395. An instruction which invites speculation and gives to the jury a roving commission is error, and its submission is reversible error. Reiling v. Russell et al. 153 S.W.2d 6, l.c. 10. 5. The trial court erred in admitting incompetent, irrelevant and immaterial evidence on the part of respondent, which evidence was prejudicial to appellants. As a consequence of the admission of said evidence, the verdict was the result of bias and prejudice on the part of the jury. The trial court erred in allowing counsel for respondent on cross-examination of Leland Johnson and Clint C. Johnson to make reference to and ask questions regarding other accounts outstanding against the Fashion Shop, operated by Leland Johnson and Clint C. Johnson; and also in allowing counsel for respondent in cross-examination of Leland Johnson and Clint C. Johnson to ask questions over the objections and exceptions of appellants d/b/a Johnsons' Department Store, in regard to other accounts alleged to be outstanding against appellants d/b/a Johnsons' Department Store, thereby trying to prejudice the jury against said appellants, and to leave the impression with the jury that said Johnsons' Department Store owed similar accounts and were trying to defraud their creditors; that all of said testimony was immaterial in this case and did not prove or disprove any issue in the case, and was done solely for the purpose of prejudicing the jury against these particular appellants; that all of said testimony was objected to by appellants, but was admitted over the objections of appellants. The verdict of the jury is the result of bias and prejudice on the part of the jury against the appellants, and was caused and brought about by the manner of cross-examination of the witnesses, Leland Johnson and Clint C. Johnson, by counsel for respondent, all of which was objected to by said appellants, which objections of said appellants were overruled by the trial court. 6. The trial court erred, over the objections and exceptions of appellants made and saved at the time and preserved in the record, in rejecting competent, relevant and material evidence offered by appellants. (1) The trial court erred in excluding Appellants' Exhibit "2" (T. 169). Exhibit "2" is the Articles of Partnership between Leland Johnson and Clint Johnson, setting up the business known as the Fashion Shop. This exhibit was offered in evidence but was excluded by the Court over appellants' objections (T. 168). This exclusion by the trial court was error because appellants offered to show by virtue of said exhibit that Leland Johnson was not connected with Johnsons' Department Store in any way at the time of the transaction in question. The failure of the trial court to admit this exhibit deprived appellants of their right under the law and the evidence to show that Leland Johnson was not connected with them in business in any way, and was reversible error. (2) The trial court erred in excluding Appellants' Exhibit "3" (T. 175). Exhibit "3" is an instrument entitled Partial Dissolution and Agreement. This instrument dissolved as of March 10, 1948, of W.T. Johnson, W. Ray Johnson, Frank E. Johnson, Leland G. Johnson, Paul H. Johnson and Clint C. Johnson, by withdrawing Clint C. Johnson and Leland G. Johnson from said Partnership. Exhibit "3" was offered in evidence, but was excluded by the trial court over appellants' objection (T. 174). This exclusion by the trial court was error because appellants offered to show by virtue of said exhibit that Leland Johnson was not connected with Johnsons' Department Store in any way at the time of the transaction in question. The failure of the trial court to admit this exhibit deprived appellants of their right under the law and the evidence to show that Leland Johnson was not connected with them in business in any way at the time of the transaction in question, and was reversible error. (3) The trial court erred in excluding Appellants' Exhibit "5" (T.219, 220). Exhibit "5" is a letter addressed to Dun and Bradstreet, Inc., 710 North Twelfth Blvd., St. Louis 1, Missouri. This exhibit was signed by W. Ray Johnson, Mgr., and informed Dun and Bradstreet of the dissolution of the partnership as to Clint C. Johnson and Leland G. Johnson. This exhibit was offered for the purpose of showing that at the time of the transaction in question Leland Johnson was not connected in business with appellants and was offered for the purpose of showing that respondent knew at the time of the transaction in question that Leland Johnson was not connected in business with appellants. Respondent's manager, Harry Mass, testified (T. 49) that respondent's practice was to check the credit rating of its customers in "Dun Bradstreet's". Appellants contend that Exhibit 5 informed Dun and Bradstreet, March 17, 1948, that Leland Johnson and Clint C. Johnson were no longer connected with appellants' business; that the furnishing of this information to Dun Bradstreet was sufficient to inform respondent that Leland Johnson was not connected in business with appellants at the time of the transaction in question in view of the fact that respondent looked to Dun Bradstreet for the service of such information (T. 49). Consequently, appellants submit that the exclusion of Exhibit "5" deprived appellants of their right under the law and the evidence to show that Leland Johnson was not connected with appellants' business at the time of the transaction in question, and also deprived appellants of their right to show that respondent knew at the time of the transaction in question that Leland Johnson was not connected with appellants' business. Appellants further submit that the refusal of the trial court to admit Exhibit "5" in evidence was reversible error. Where evidence erroneously excluded by the trial court is in the record, it will be considered on appeal. Look v. French et al., 144 S.W.2d 128 l.c. 132; Wahl v. Cunningham et al., 6 S.W.2d 576, l.c. 587.
Fields Low, of Lebanon, Jean Paul Bradshaw, of Springfield, Attorneys for Respondent.
I. The Trial Court Did Not Err in Overruling Appellants' Motion For A Directed Verdict. A. The Motion Was Insufficient. Section 510.210 R.S. Mo. 1949. Oganaso v. Mellow (Mo. Sup.) 201 S.W.2d 365, 366-7; Rosebrough v. Montgomery Ward Co. (Mo. App.) 215 SW (2) 295, 298. Schubert v. St. Louis Public Service Co. (Mo. App.) 206 S.W.2d 708, 710, affirmed (Mo. Sup.) 214 S.W.2d 420. B. The Testimony Made A Clear Case of Agency By Estoppel. Will Doctor Meat Co. v. Hotel Kingsway (Mo. App.) 232 S.W.2d 821, 823-4; Dell-Wood Tires v. Riss Co. (Mo. App.) 198 S.W.2d 347, 353-4; Sidney Weber, Inc., v. Interstate Motor Freight System (Mo. App.) 205 S.W.2d 291, 297; Botto v. James (Mo. Sup.) 209 S.W.2d 256, 262. II. The Trial Court Did Not Err In Refusing To Give Instruction "A". Merrick v. Ridgeways, Inc. (Mo. Sup.) 241 S.W.2d 1015, 1020; Stanich v. Western Union Tel. Co. (Mo. Sup.) 153 SW (2) 54, 56; State ex rel. Gisham et al. v. Allen et al., Judges (Mo. Sup.) 124 S.W.2d 1080, 1082. III. The Trial Court Did Not Err in Refusing To Give Instruction "B". IV. The Trial Court Did Not Err In Giving Instruction No. 1. Van Brock v. First National Bank (Mo. Sup.) 161 S.W.2d 258, 260; Barker v. Silverforb (Mo. App.) 201 S.W.2d 408, 414. V. The Trial Court Did Not Err In The Admission Of Testimony. Esker v. Davis (Mo. App.) 207 S.W.2d 798. VI. The Trial Court Did Not Err in Excluding Exhibits 2, 3 and 5. Daly v. Sovereign Camp W.O.W. (Mo. App.) 55 S.W.2d 743, 744; Byam v. Kansas City Public Service Co. (Mo. Sup.) 41 S.W.2d 945, 952; Wahl v. Cunningham (Mo. Sup.) 56 S.W.2d 1052, 1059.
On November 25, 1949, plaintiff filed its original petition. On September 30, 1950, plaintiff filed an amended petition, on which the case was tried. To this defendant Johnsons' Department Store filed its separate answer. On November 1, 1950, defendant Railway Express Agency, Inc., filed its separate motion to dismiss. This motion was overruled by the trial court on November 18, 1950. On December 9, 1950, defendant Railway Express Agency, Inc. filed a separate answer.
Upon the application of plaintiff and at its cost, the case was continued until the next regular term of said court. The case was tried at the May term of the Laclede County Circuit Court, before the judge thereof, and a jury. At its conclusion, the jury returned a verdict in favor of plaintiff and against Johnsons' Department Store, in the sum of $633.25, with interest thereon, at 6% per annum, from June 12, 1949, making a total sum of $709.24, and the jury found in favor of defendant Railway Express Agency, Inc. The trial judge entered judgment accordingly.
On June 23, 1950, defendant Johnsons' Department Store filed its motion for a new trial. Being unsuccessful in said motion, said defendant has appealed to this Court. The verdict and judgment were in favor of defendant Railway Express Agency, a corporation, and as plaintiff (respondent) did not appeal from such judgment, that defendant dropped out of the case, except as a witness.
Plaintiff asked for a judgment against Johnsons' Department Store for goods and merchandise valued at $633.25 on May 12, 1949, and on said date delivered said goods to defendant Railway Express Agency, a corporation. Said latter defendant agreed to carry the two packages safely and to deliver them to defendant Johnsons' Department Store at Lebanon, Missouri.
The petition further alleged that defendant Railway Express Agency, Inc. delivered said goods to defendant Johnsons' Department Store at Lebanon, Missouri, or to some person or party unknown to plaintiff. The petition alleged that the charges for such goods were reasonable and that said defendant Johnsons' Department Store has failed and refused to pay therefor, though asked to do so.
If said goods and merchandise were directed to defendant Johnsons' Department Store, and defendant Railway Express Agency, Inc., failed and neglected to deliver said goods as directed, judgment was prayed for against both of said defendants.
Defendant Johnsons' Department Store filed what amounted to a general denial and specifically denied that defendant Railway Express Agency, Inc. delivered said goods to it. The separate motion of defendant Railway Express Agency, Inc. to dismiss said case as to it, was filed. Being unsuccessful in its motion to dismiss, defendant Railway Express Agency, Inc. within 30 days thereafter, as fixed by the trial court, filed its separate answer to plaintiff's petition. Among other things, said defendant alleged that it delivered plaintiff's goods and merchandise as directed to defendant Johnsons' Department Store at Lebanon, Missouri.
The transcript of the testimony of the witnesses is very long, covering about 300 pages. It seems that two of the Johnson boys, Leland and Clinton, withdrew from the Johnsons' Department Store and established a Women's Fashion Store on the second floor, previously occupied by Johnsons' Department Store, and put the display of its goods in the south window on the main floor.
So far as appears, none of the Johnsons connected with the Johnsons' Department Store had any financial interest in the Women's Fashion Store on the second floor. Leland Johnson later withdrew from the Women's Fashion Store, and that store subsequently failed and its owner went into bankruptcy.
Plaintiff had previously sold goods to Johnsons' Department Store, and so directed the particular packages of goods or merchandise to be shipped. They were presented and delivered to the Johnsons' Department Store, as directed, in due time. Whether such packages were taken by some of the Johnsons connected with the Women's Fashion Store above, was not disclosed. The goods were directed to and delivered to Johnsons' Department Store on the first floor. They were receipted for by Leland Johnson, one of the operators of the Women's Fashion Store above, according to plaintiff's evidence.
What became of the packages is more or less of a mystery in this case. Defendant Johnsons' Department Store denied receiving the goods and the proof failed to establish that the particular goods were received by the Women's Fashion Store above, although they were such goods as the Women's Fashion Store above handled.
The evidence of plaintiff tended to show that Leland Johnson had ordered goods from plaintiff for Johnsons' Department Store, before the Women's Fashion Store was established; and the theory of plaintiff was that it had no knowledge of the establishment of the Women's Fashion Store. It charged the goods to and directed them to defendant Johnsons' Department Store, on its previous credit.
That, at least, must have been the theory of the jury in returning a verdict against defendant Johnsons' Department Store only. The jury had the right to believe or disbelieve the various witnesses. It is plaintiff's contention that there is no reason why the verdict of the jury should be disturbed by us.
Witness Henry Moss, working for plaintiff, met Leland Johnson and introduced him to the saleslady. It seems that defendant Johnsons' Department Store had handled women's fashion goods before the Women's Fashion Store was opened by Leland and Clinton Johnson, and that Leland had several times ordered ladies' goods for Johnsons' Department Store, when it sold goods of that kind.
On cross-examination, witness Henry Moss fixed the time that Leland Johnson ordered ladies' fashion goods for Johnsons' Department Store, as 1945, 1946 and 1947, about two years before Leland Johnson ordered goods that ultimately found their way to the Women's Fashion Store above, although charged to defendant Johnsons' Department Store. Moss testified that he wrote time and again to defendant Johnsons' Department Store, and even telegraphed to that store and also talked to some one there and received a promise of payment for the goods. He even heard of the bankruptcy proceedings, but did not pay any attention to such reports, as they did not apply to Johnsons' Department Store.
Complaint is now made of the refusal by the trial court of instructions asked by defendants. Instruction "A" requested by appellant and refused by the trial court, was as follows:
"The Court instructs the jury that if you find and believe from the evidence that Leland Johnson had no authority from defendants W.T. Johnson, W. Ray Johnson, Frank Elwin Johnson and Paul Johnson to purchase the goods and merchandise referred to in evidence from plaintiff, if you so find, then your verdict shall be for the defendants."
Appellant also asked and the trial court refused to give Instruction "B", as follows:
"The Court instructs the jury that even though you may find and believe from the evidence that Leland G. Johnson purchased from the plaintiff the goods and merchandise referred to in evidence, yet before you can find the issues for the plaintiff and against the defendants W.T. Johnson, W. Ray Johnson, Franklin Elwin Johnson and Paul Johnson, doing business as Johnsons' Department Store, it devolves upon the plaintiff to prove by the preponderance or greater weight of the evidence that the said Leland G. Johnson was authorized by the defendants W.T. Johnson, W. Ray Johnson, Franklin Elwin Johnson and Paul Johnson, doing business as Johnsons' Department Store to purchase said goods and merchandise, and unless the plaintiff has so proven the plaintiff is not entitled to recover and your verdict will be for the defendants W.T. Johnson, W. Ray Johnson, Franklin Elwin Johnson and Paul Johnson, doing business as Johnson's Department Store."
The appellant was clearly entitled to have the jury instructed on its theory of the case and the refusal of such instructions was error.
In Fair Mercantile Company v. Union-May-Stern Co. 221 S.W.2d 751, l.c. 753, the St. Louis Court of Appeals, speaking through Judge Flynn, said:
"* * * * the president of a corporation, without any special authority from the board of directors, may perform for the corporation all acts of an ordinary nature which, by usage or necessity are incident to his office; that the authority of directors to bind the corporation belongs to them collectively, not individually, and their actions are to be shown by the minutes of the corporation * * * *."
In Stevens Davis Co. v. Sid's Petroleum Corporation, 157 S.W.2d 246, l.c. 249, the same Court of Appeals, speaking through Sutton, Commissioner, had said:
"There is no evidence whatever in the instant case that Irven Dubinsky was manager of the defendant corporation, or that he was authorized to act as manager or to transact any business of any character for the corporation, or that he had ever at any time previous to the transaction in question acted as manager or transacted any business of any character for the corporation. It is true he was a stockholder in the corporation and received dividends on his stock, but that gave him no authority, actual or apparent, to transact the business of the corporation. * * * *."
The facts set out in refused Instruction "A" are largely covered by Instruction "B", also refused by the trial court. Under the cases cited, the trial court at least should have given defendant Johnsons' Department Store Instruction "B". Said defendant was clearly entitled to have the jury pass on its contention that Leland Johnson had no authority in 1949 to bind defendant Johnsons' Department Store, as that defendant's evidence tended to show.
For the error in refusing to give and read to the jury Instruction "B" asked by defendant Johnsons' Department Store, the judgment entered against Johnsons' Department Store must be reversed and the cause remanded for another trial against said defendant.
It is so ordered. Vandeventer, P.J., and McDowell, J., concur.