The instruction was refused, and the point was saved, and is here assigned as error. The assignment is well taken. While it is true that trial courts should exercise great caution in taking a case from the jury on the facts, and while it should only be done in cases where a verdict for the opposite party must properly be set aside on application, yet the question of the existence in the record of any legal evidence—not a scintilla, merely—upon which a verdict for the party holding the burden of proof could be based, is always a question of law; and, in a proper case, the court should not hesitate to declare the law upon this point as readily as upon any other. Thomp. Trials, §§ 2247-2249, Wagon Co. v. Matthiessen, 14 N. W. Rep. 107; S. C. 3 Dak. 233.
The evidence is all in the record. The members of this court have separately and carefully examined it; and we are agreed that, taking from the record defendant’s sworn denials, and admitting all of plaintiff's evidence to be true, yet there exists no legal evidence upon which an agency to borrow money, or an estoppel to deny such agency, can be based. It will serve no good purpose to set out the testimony. No express authority is claimed. Plaintiff relies solely upon implied authority arising from the acts of the pretended agent, Newhauser. Admitting that Newhauser did borrow money from another party, ostensibly for the use of defendant—and that is far from certain on the record—and admitting that such loan was paid by check drawn by Newhauser in defendant’s name, still there is no legal evidence that defendant knew of such transactions, or of any facts or circumstances from which he could reasonably infer the same. Nor is there any evidence that defendant ever received any benefit whatever, directly or indirectly, from the loan in this case, or any other loan which Newhauser pretended to make for his benefit. Reversed, with costs, and a new trial ordered. All concur.
