Boswell v. Pettit.

McGown, J.,

(after stating the facts as above.) The testimony introduced herein on the part of the plaintiff (wholly uncontradicted) made out a prima facie case, and sufficient to go to the jury. It shows that the plaintiff did work and furnished materials upon the building in question of the value of $399.18, the amount claimed. That a bill for such work was presented to the defendant, who said it was right, and promised to pay it. The work was ordered by defendant’s son while in his employ. That defendant told the witness Trip tiiat he had orders to repair the house, and tiiat he would send bis son to attend to it. That the son called, and asked him (Trip) what was to be done. That defendant looked over the bill presented for the work, and said it was all right; thus recognizing the authority, and ratifying the action of his son in ordering the work. There was evidence of authority on the part of the defendant to his son to order the work done, and of the agency of the son, which should have been submitted to the jury; and the testimony as to what was said to the son at the time he ordered the work, if subsequently connected, as it was, by defendant’s admission, should have been admitted, and it was error to exclude it. The question as to the ownership of the building upon which the work was done was entirely immaterial. If the defendant ordered plaintiff to do the work, he became liable therefor; and this question should have been submitted to the jury, and the dismissal of the complaint was error, and plaintiff’s exception taken thereto was well taken. The judgment dismissing the complaint must be reversed, with costs, and a new trial ordered.