tion of law for the court; and it is error to refuse an instruction asked by defendant, after the testimony is closed, directing a verdict in his favor, when upon the evidence in the record, a verdict for plaintiff must properly be set aside on application.
(Opinion Filed April 1, 1890.)
APPEAL from district court, Stutsman county; Hon. Roderick Rose, Judge.
This was an action for money loaned. It appeared from the evidence that one Newhauser procured the loan, and the contention of plaintiff was that he procured it as agent for defendant. The defendant contended that Newhauser had no authority as agent to borrow money.
S. L. Glaspell, Esq., for the appellant, argued that the evidence failed to show that plaintiff was administratrix; citing Wittman v. Watry, 37 Wis. 238; that Newhauser, as general manager of defendant’s business, had no implied authority to borrow money, citing Mechem on Agency, § 399; Bickford v. Menier, 107 N. Y. 490; Bank v. Ins. Co., 103 U. S. 783; Wood v. Goodbridge, 52 Am. Dec. 771; Spooner v. Thompson, 48 Vt. 259; that the evidence of Newhauser’s authority was limited to his own representations and to statements of others that he had at other times borrowed money for defendant; that such evidence was improperly admitted, it not being shown that defendant was cognizant of such acts, citing Compiled Laws, § 3981; Graves v. Horton, 35 N. W. Rep. 568; Law v. Stokes; 90 Am. Dec. 655.
Messrs. Nickeus & Baldwin, for respondent, argued that Newhauser was in the habit of borrowing money to use in defendant’s business, and of repaying it with checks signed with defendant’s name, which were afterwards returned to defendant after they had been cashed. That plaintiff having relied upon these facts as showing the agent’s authority, the defendant is estopped to deny such authority, citing Kingsley v. Fitts, 51 Vt. 414; 1 Am. Dec. 425; and other cases.
A petition for a rehearing filed by respondent was denied.
Bartholomew, J. Plaintiff sued as administratrix and alleged—First, her representative capacity; second, "that on the 9th day of December, 1887, she loaned the defendant, for his accommodation, through his agent, Ferdinand Newhauser, and
