#### UNIVERSAL METAL COMPANY v. DURHAM AND CHARLOTTE RAILROAD COMPANY.

(Filed 23 October, 1907).

1. Power of Court — Verdict, Set Aside — Record—-Reason Sufficient.

When the court below sets aside the verdict of the jury for an insufficient reason, it is immaterial upon appeal when the record discloses another and valid reason therefor.

2. Evidence — Principal and Agent — Misrepresentations—Question for Jury — Fraud—Opinion Expressed.

Upon evidence that plaintiff’s agent induced the agent of defendant by false and fraudulent misrepresentations to buy certain metal or steel, called “metalóse,” as being preferable to metal or steel used by defendant in a limited way; that defendant’s agent was one of limited authority, and ignorantly purchased a greater quantity than defendant’s business and his authority as such agent would justify, of which plaintiff’s agent had notice: Held (1), it was error in the court below to direct a verdict against the defendant upon an appropriate issue of fraud; (2) such direction was an expression of opinion by the court, prohibited by Revisal, sec. 535.

3. Principal and Agent — Limited Authority — Question for Jury — Instructions Construed.

Defendant’s prayer for special instructions as to the authority of its agent should have definitely required the jury to find what was the extent of the agent’s authority — that is, whether limited or unlimited; and if the former, whether under the circumstances of this case the plaintiff was notified thereof; but if by a reasonable construction it embraces these features, it will be regarded as sufficient.

4. Instructions — Charge in Writing, Request for — Apt Time.

The request of the Judge below to put his charge to the jury in writing is in time when made at the close of the evidence and before the beginning of the argument to the jury.

5. Same — New Trial — Costs of Appeal.

Where a new trial is granted in the Supreme Court, the awarding of the costs is discretionary.

Civil actioh, tried before Peebles; and a jury, at May Term, 1907, of the Superior Court of Mooke County.

*294This action was brought by the plaintiff to recover of the defendant $898.95 upon an alleged contract, by which the plaintiff agreed to sell to the defendant a certain quantity of steel in bars at the aforesaid price. The defendant denied the contract, and especially alleged that it did agree to purchase from the plaintiff, a firm of Mulhonse, Erance, to be shipped and delivered to it at Gulf, in this State, a certain quantity of metal or steel, which was "at the time falsely and fraudulently represented to the defendant to be “metalóse,” a new discovery, which was much lighter than and more preferable to the steel in ordinary commercial use; "that the said false representation was made to induce the defendant to buy a much larger quantity than, as the plaintiff well knew, the defendant intended or desired to buy; that when the “metalóse” arrived it was discovered not to be as represented by the plaintiff, and the defendant refused to receive the same.

The Court submitted issues to the jury, which, with the answers thereto, are as follows: “(1) Did the defendant contract with the plaintiff as alleged in the complaint ? Answer, Yes. (2) Was the defendant induced by fraud and misrepresentation to enter into the alleged contract with the plaintiff? Answer, No. (3) Is the defendant indebted to the plaintiff on account of the alleged contract ? If so, in what amount? Answer, $898.95. (4) Were Paul Bloch and Octave Bloch, at the time mentioned in the complaint, trading and doing business under the firm name of Universal Metal Company ? Answer, Yes.”

There was evidence tending to show that Prank D. Jones, superintendent of the defendant company, who represented it in the negotiations, told Alfred Jacob, the agent of the plaintiff, at the time the alleged contract was made, and with whom, as such agent, it was made, that he had received orders not to buy more than $100 worth of supplies at any one time without the approval of the president of the company, and *295tbat sucb order bad in fact been given. Jacob replied to Jones tbat tbe order would not exceed in amount $100. There was further evidence tbat tbe shops of tbe defendant company were not large, and only a small'quantity of steel was needed, and Jacob was, at tbe time tbe alleged contract was made, notified of this fact, and tbat tbe order was given only to test tbe new metal. There was evidence introduced tending, as we think, to show tbe alleged fraud practiced upon tbe defendant. Requests for instructions were submitted by tbe defendant upon tbe questions of fraud and tbe authority of Jones to make tbe contract, and refused by the Court. When the evidence was closed, and the Court bad discharged tbe jurors until after tbe noon recess,' and directed them to leave tbe court room, tbe Judge asked tbe defendant’s counsel what evidence there was upon tbe question of fraud, and tbe matter was argued by tbe respective counsel for a short time, whereupon tbe Judge remarked tbat tbe court would take a recess and give counsel an opportunity to examine and present any authorities they could find upon tbe question when tbe court convened after tbe noon recess. When tbe court reconvened, and before anything else bad been done, tbe defendant’s counsel requested tbe Court to give a written charge. This was refused, upon tbe ground, as stated at tbe time by tbe Judge, -that tbe request was made too late. He then charged tbe jury orally, and instructed them, upon tbe second issue, tbat there was no evidence of fraud, and tbat they should answer tbe issue “No.”

A verdict was rendered for tbe plaintiff, as above indicated, whereupon the presiding Judge set it aside and directed tbe following order to be entered: “Tbe Court being of opinion tbat tbe order for goods upon which this action is based was not binding upon defendant, and for tbat reason be erred in bis charge to tbe jury on tbe first issue, not as a matter of discretion, but as a matter of right on tbe part of tbe defendant, *296tbe Court sets aside tbe verdict and awards a new trial.” Tbe .plaintiff excepted and .appealed.

George H. Humber for plaintiff.

Guthrie & Guthrie for defendant.

Walkee, J.,

after stating tbe ease: It was stated on tbe argument that the Court thought tbe order for tbe goods was not binding upon tbe defendant because signed simply “Frank D. Jones, Superintendent,” without indicating for what company be was superintendent. • Tbe reason of tbe Judge for setting aside tbe verdict, if insufficient, is immaterial, so that there appears a good and valid reason in tbe record for sustaining bis ruling, and we are all of tbe opinion that such a reason does exist. There was evidence that Jones was an agent of limited authority, and there was also evidence, we think, that a fraud was practiced upon tbe defendant by plaintiff’s agent in bis dealings with Jones, and yet tbe Court instructed tbe jury that, if they found Jones made tbe order for tbe metal on 19 September, 1905, they should answer tbe first issue “Yes,” and that tbe evidence in tbe case was not sufficient to sustain an affirmative finding upon tbe second issue, and they should answer it. “No.” Tbe defendant’s counsel bad asked instructions as to. both of these issues. Their third prayer, as to tbe authority of Jones, was-not very explicit, it is true, as it referred more to tbe fact that Jones bad informed Jacob of bis restricted authority as agent of-tbe defendant than it did to the nature or extent of the authority itself; but if a liberal construction is given to it, we find it sufficient to embrace that feature of tbe case. It should have more definitely required tbe jury to find, first, what was tbe nature of Jones’ authority, whether limited or unlimited, and, if they found that it was limited, whether, in tbe second place, tbe plaintiff, through Jacobs, was notified of tbe fact. If Jones bad only tbe restricted authority, as testified by him, be could not, of course, exceed tbe limit of *297bis power when be made tbe contract. Brittain v. Westhall, 135 N. C., 492; ib., 137 N. C., 30; Bank v. Hay, 143 N. C., 326.

Whether tbe evidence introduced to establish tbe fraud was sufficient for that purpose was a question for tbe jury, and tbe Judge could express no opinion as to its weight. Revisal, sec. 535; Withers v. Lane, 144 N. C., 184; State v. Simmons, 143 N. C., 613. Whether there is any evidence upon which tbe jury could conclude as to the truth of tbe matter submitted to them for inquiry and decision, we have often said, is a question of law to be decided by tbe Judge (Byrd v. Express Co., 139 N. C., 273; Campbell v. Everhardt, 139 N. C., 503; Lewis v. Steamship Co., 132 N. C., 904) ; but, there being-some evidence-which is more than conjectural or speculative to establish the fact in issue, and which the law adjudges to be fit for the consideration of a jury, whether it sufficiently proves the fact or not is a question for the jury. The cases already cited also establish this proposition, which is but the counterpart of the other. The able and learned Judge who presided at the trial may have intended by the expression which he used to say that there was no evidence of the fraud, but, even if this was his purpose, there was error, as, in the view we take of the evidence, without setting it out at length, we think there was at least some which the jury should have been permitted to pass upon.

We also are of the opinion that the Judge erred in not reducing his charge to writing, as he was asked to do by the defendant’s counsel. The request was made in apt time. It is impossible to distinguish this case from Craddock v. Barnes. 142 N. C., 89. The principle established in that case is clearly applicable to this one. The mere intervention of an argument by counsel, at the Judge’s invitation, upon the question as to whether there was any evidence of a particular fact, when the jury had retired from the court room for the recess, and as preliminary to the discussion before them after *298tlie recess, should not have the effect to except this case from the principle of that one. The argument to the jury had not commenced when the request to the Court was made. We do not see anything in the record to indicate that the Judge did not have adequate time to write out his charge after he was asked to do so. Sawyer v. Lumber Co., 142 N. C., 162, would also seem to be direct authority against the ruling 'of the Court that the request had come too late. In that case the present Chief Justice said: “The defendant, at the close of the evidence, and before the argument began, requested the Court to put its charge in writing.” This means, of course, “at the close of the evidence, and before the argument (to the- jury) began.” We then held that the Judge committed an error when he failed to comply with-the request.

There must be a new trial, for the errors indicated in the plaintiff’s appeal.

New Trial.

DEFENDANT’S APEEAL IN SAME CASE.

WalKER, J.

These two appeals have been so prepared for this Court that it has been found impossible to reach the true merits of the questions intended to be presented without considering them together and as if they had been consolidated into one. We doubt if it was necessary for the defendant to have formally taken an appeal, as the exceptions noted in its case might well have been considered in the plaintiff’s appeal. It is stated by the Judge, in the plaintiff’s appeal, the case having been settled and signed by him, that all the evidence ■was sent up at the request of the appellant, whereas it appears by reference to the defendant’s appeal that all the evidence,, by some accidental omission, of course, ivas not, in fact, stated in the plaintiff’s appeal, for there is much evidence to be found in the case as stated in the defendant’s appeal which is not in the case as stated in the plaintiff’s appeal. It ivas intended, no doubt, and we think the cases clearly show it *299to be so, that all tbe evidence should have been set out in the plaintiff’s appeal. We have for this reason, and for others of equal or greater weight, found it absolutely necessary, for the purpose of doing justice by intelligently considering this case, to unite the two cases, as it were, into one appeal, and in this way we have been enabled to reach what we consider to be the right conclusion upon the whole matter. In view of the confusion in the record, as above indicated, we think the costs of this Court, except the costs of printing the records and briefs, should be divided between the parties. The plaintiff is adjudged.to pay one-half thereof, and the defendant the other half. The plaintiff will pay the costs of printing the record and briefs in its appeal, and the 'defendant the cost of printing the record and briefs in its appeal. Where a new trial is granted, the awarding of costs is discretionary. Revisal, see. 1279; Williams v. Hughes, 139 N. C., 18.

Regular practice and procedure would require us, under ordinary circumstances, to dismiss the defendant’s appeal, as it was taken only to save its rights in case our opinion should have been adverse to it in the plaintiff’s appeal, and, as we have decided the other way, a consideration of the defendant’s appeal separately becomes unnecessary. We conclude, though, that an apparent departure from the strict practice in such cases is justified, under the peculiar circumstances, and the real intention of the parties will be effectuated by considering the two cases as we have done, and dividing the costs. If this course were not taken, and the plaintiff’s position is the correct one, we- would, perhaps, have to affirm in its appeal and award a new trial in the defendant’s appeal, and thereby produce confusion and incongruity in the result. It would be vain and useless to issue a certiorari or any other process to perfect the case, when all the facts are before us in the two cases.

Sometimes it may be proper and legitimate practice for a party in whose favor a case has been decided to note his excep*300tions and preserve them by an appeal in case the ruling of the court is reversed here, but the instances where this practice can be justified are exceedingly rare, and it is not to be encouraged. We do not decide that the defendant’s appeal was improvidently taken in this case, though we are inclined to think the defendant’s exceptions could haA’e been presented in the plaintiff’s appeal. -Let the tAVO cases be considered as one, and the costs he divided and paid as herein directed.

New Trial, as ordered in plaintiff’s appeal.