concurring. While I concur in the result reached in the majority opinion, I cannot agree that on the evidence the plaintiffs’ case hangs by such slender'threads as there indicated,- and consequently am moved to express my views by way of this concurring opinion.
In 1904 the plaintiffs were dealers in lumber in Orleans and Caledonia counties and had, in the prosecution of their business, a quantity of box boards, so-called, being poor lumber suitable for boxes. ■ Iphus and Lucius Gordon were then engaged in the manufacture of • lumber -at Lyndonville, Under-the-firm name of Gordon Brothers. At the same time their uncle, L. B.' Harris, the defendant, was cashier of Lyndonville National Bank. ' In this suit'the plaintiffs seek to recover the'contract price for certain lumber for'box boards, some drawn from Wheelock and some *26from Burke to Gordon Brothers’ mill, for their own use there, which they claim to have sold to the defendant through Lucius Gordon who was then acting as the defendant’s agent. The plaintiffs Claimed that their evidence tended to show that in June, 1904, Lucius Gordon, acting as the agent of the defendant, purchased of the plaintiffs the box boards in question, and that in so doing the said Lucius had authority to pledge and did pledge the credit of the defendant, the box boards being charged in the first instance directly to the defendant. The defendant denied that the plaintiffs’ evidence had this tendency, and excepted to the charge wherein the court instructed the jury that their evidence tended to show that the original sale was made to the defendant. Whether the evidence had the tendency thus stated by the court, the transcript is referred to and made to control. The transcript shows that M. M. Taplin, one of the plaintiffs, testified that when at Gordon Brothers’ mill, Lucius Gordon asked him if the plaintiffs had some box boards at South Wheelock, and being told they had probably a hundred thousand feet or more, Lucius said they would like to buy them, further saying he supposed the plaintiffs had had some trouble about getting pay for box boards, and would not want to sell them unless they “had the money right down,” whereupon Taplin, understanding that Gordon Brothers were not financially responsible, said he should want to know he was going to have it if he sold them; that Lucius then said the defendant would back them if' they bought the boards, and pay for them directly; that Taplin said if the defendant was going to have the box boards, plaintiffs would take the pay out as he (Lucius) suggested, that is, when they worked the boards up and disposed of them; that the price made was ten dollars per thousand; that the proposed trade was left open, and Lucius said he would see the defendant; that later Taplin had another interview with Lucius in which the latter said the defendant would pay for the box boards, and Taplin said if the plaintiffs sold them they should charge them direct to defendant, delivered at Gordon Brothers’ mill, to be taken as he, Lucius, counted them in; that Lucuis said the defendant was going to pay for all the box boards they (Gordon Brothers) had; that this talk was a short time before the plaintiffs began to deliver the boards from the South Wheelock end; that ‘ ‘ counted in” meant to count the lumber “off the load” as delivered in Gordon Brothers’ mill yard; that Taplin understood he was *27selling the boards to the defendant and had the right to .charge them immediately to him; that they'were charged to the defendant at once and' he, as Taplin understood, became liable to pay for them; that after thus making the trade with Lucius, hé, Taplin,- did not see the defendant before the latter went to Europe, but after learning of his return, had an interview with him in the Lyndonville National Bank in the presence of said Lucius, respecting the boards in question.
As to what was said and done on that occasion Taplin testified as follows:
Q. Now tell us what you told Mr. Harris as to whom you had delivered those boards and to whom you charged them.
A. Mr. Gordon and I went into the bank for that purpose and I told him that we had been delivering these box boards there and charging them to him. I said Mr. Gordon said before we made any arrangement that you were to pay for them, and he sat down and I said, ‘ ‘ I think it is better for you to write something for me to take back to the office, something might happen to you,” and he said, ‘‘this is the paper and what do you want I should write?”
Q. When you told him you had sold the boards and charged them to him by reason of what Mr. Gordon said, what did he say?
A. He said “all right,” he said “What kind of a writing do you want ? ’ ’
Q. Did he make a writing there ?
A. He did, he sat right down and wrote on the sheet of paper before him.
Q. Was anything said at that interview or at that time as to whether that writing should apply to future deliveries?
A.- We had not any to deliver in the future, box boards.
Q. Was not anything said in relation to future deliveries?
A. No, we had them all in, we supposed, except picking up the yard. They did draw a few square edged boards after-wards, but I did not intend to have them drawn.
Plaintiff Taplin further testified that Defendant’s Exhibit A was then and -there written and signed by the defendant, and signed as “accepted” by Gordon Brothers and by the plaintiffs. In cross-examination, Taplin being asked whether this writing embodied the agreement that he made with Lucius Gordon in June, 1904, answered:
*28"' A. Not exactly, The agreement that we had was that they should pay for them as they shipped them, that is, as they made them up in shipments, that is, Mr. Harris should, the money was to come to him and he was to pay for them. He says, “What was your agreement?” and I told him.
Q. The question is, in what particulars does this agreement vary from the one you made with Mr. Gordon?
A. With regard to the paying out of the — -as holding back —I think something of that kind, and still it might all be right in' there. He wrote it to suit himself and I did not pay particular attention how he was going to pay, only he was going to pay as fast as he got it out of the box boards ....
Q. Now Mr. Taplin, you had sold those box boards to be paid for out of the money that came from their manufacture, is that right?
A. I sold them to be paid for when they had manufactured them.
Q. You mean before they got their pay for them?
A. When they got the money out of them, that is, they did not want to pay for them until they were shipped.
Q. You had sold them to be paid for as soon as manufactured or as soon as shipped?
A. Yes.
■ ' lie further testified in'cross-examination that he supposed the writing of December 2, (Exhibit A) covered the understanding of the arrangement made by him and. Lucius Gordon, and that the defendant, when he gave that Writing, verified his .understanding of that trade; that he interpreted it as indicating that ■the defendant was to pay for the 'lumber; that he took the writing because he thought it better to have something from the ■ defendant,- — to show he'was consenting to the'lumber being charged to him; that thé defendant first Wrote the paper showing ■the lumber to be taken “work measure,” and on reading it over Mr. Gordon said, “it was to be” “counted in,” and “we agreed to that there and Mr. Harris changed it” accordingly.
'Exhibit A reads:'
“December 2
“Taplin & Rowell,
“Gentlemen:'
“My understanding of the agreement between' you and Gordon Bros, is that T shall stand’bound to you to *29pay for the box boards, out of the proceeds of the boxes, when'finished, at the rate of $10 per thousand delivered at their factory in Lyndonville, as counted in.
<£L. B. Harris.
“Accepted,
£ £ Gordon Bros.
£ £ Taplin & Rowell, by M. M. Taplin. ’ ’
The defendant’s evidence tended to show that Lucius Gordon was not his agent, and had no authority to act as such, in the purchase of the lumber in question; that defendant had no talk with plaintiff Taplin at a time when Lucius Gordon was present concerning the payment for lumber which Taplin & Rowell had sold and delivered; and that the writing (Exhibit A) did not relate to “lumber that had been delivered, it was only for the future, ’ ’ nothing was said about boards that had been delivered, “it was about boards that were to be delivered”; that on the occasion of making Exhibit A, Taplin and Lucius Gordon came to the bank and told the defendant that they had made an arrangement in regard to the delivery of the box boards and that they wanted to do the business through the bank. Defendant’s evidence further tended to show that the lumber was sold by the plaintiffs to Gordon Brothers, not to the defendant, and that the arrangement between plaintiff Taplin and Lucius Gordon was that the money from the sale of box shooks by Gordon Brothers was to go through defendant’s hands to the plaintiffs to pay for the boards; that this arrangement was communicated by Lucius Gordon to the defendant; and that nothing was said by the plaintiffs about charging the lumber to the defendant.
On the question of agency, though the testimony of plaintiff Taplin that at the time of making the contract of sale, Lucius Gordon told him in effect that he, Lucius, was authorized to act therein as the agent' of the defendant, and as to what the latter had agreed to, was hearsay, yet it was received in evidence without objection, and it was to be considered and given its natural probative effect as if it were in law admissible. Diaz v. United States, 223 U. S. 442, 56 L. ed. 500, 32 Sup. Ct. 250. Moreover, the plaintiffs’ evidence as to what was said and done on the occasion when Exhibit A was drawn up and signed also tended to show that Lucius Gordon was the authorized agent of the defendant in making the purchase, to say nothing of the latter’s *30subsequent ratification which is noticed more particularly on an exception to another part of the charge.
Not only did the plaintiffs.’ parol evidepce to which reference has been made tend to show that the original sale was made to the defendant, but Exhibit A, if it related to that transaction as Taplin testified, was also evidence having the same tendency. It was drawn up by the defendant in connection with the talk as to what the agreement was, and it was signed by the parties, including Gordon Brothers by Lucius Gordon, the. man who acted in making the purchase. There can be no doubt that conceding to the foregoing evidence the greatest probative force to which in the law of evidence it was fairly and reasonably entitled, it was sufficient on the questions named to justify a verdict ip favor of the plaintiffs, and consequently the part of the charge under consideration was without error. Bass v. Rublee, 76 Vt. 395, 57 Atl. 965; Comeau v. Manual & Sons Co., 84 Vt. 501, 80 Atl. 51; Fitzsimons v. Richardson, Twigg & Co., 86 Vt. 229, 84 Atl. 811.
Regarding Exhibit A and defendant’s ratification of the contract of the purchase, the court charged the jury:
“The plaintiffs say that (Exhibit A) refers to this very agreement that was made when Lucius Gordon contracted' for the sale of this lumber on the strength of the credit of the defendant and that this is the agreement that is referred to. Now if that is the agreement referred to or if it refers to that agreement and the real talk with reference to it, that would be a ratification of the acts of Lucius Gordon in the purchase of this lumber according to the limitations in that letter.”
Exception was taken to the statement that Exhibit A would be a ratification of the sale to' the defendant. This exception was well taken. The interpretation of that writing could not be ruled as a matter of law. Whether the writing had reference to the original agreement made between the plaintiff Taplin and Lucius Gordon as to the plaintiffs’ evidence tended to show, or only to such lumber as should be delivered in the future, as defendant testified, was'a question of fact in dispute; the words in the writing “that I shall stand bound to you to pay for the box boards, out of the proceeds of the boxes when finished, ’ ’ were ambiguous; the interpretation of the instrument depended upon facts aliunde in connection with the written language to ascertain the intent of the parties, and became a mixed *31question of law and fact for the jury to determine. Trustees of East Hampton v. Vail, 151 N. Y. 463, 45 N. E. 1030; Kenyon v. Knights Templar & M. M. Aid Assn., 122 N. Y. 247, 25 N. E. 299; Lamb v. Norcross Brothers Co., 208 N. Y. 427, 102 N. E. 564. The attention of the court being called thereto by the taking of the .foregoing exception, a supplemental charge upon the same subject was given as follows:
“In respect to the letter of December 2d (Exhibit A), it is called to my attention that I charged that this letter standing alone would amount to a ratification of the purchase. I intended to say that that letter was evidence tending to show the defendant ratified the contract made by Lucius if you find it referred to that contract and with the other evidence on the part of the plaintiffs, if you find the facts established as the plaintiffs’ evidence tends to show, that would be a ratification. If you fail to so find, why then it would not.”
To the court’s statement that the letter is evidence tending to show a ratification of Lucius Gordon’s arrangement and with the other evidence would be sufficient to warrant a ratification, an exception was saved.
It has already been seen that if this writing related to the original contract of sale, it was evidence tending to show what the contract was, and in addition thereto it may be said, in disposing of this exception, that if the writing related to that contract, it had a tendency to ratify it, and with the other facts as to the agency, the making of the contract, the talk on the occasion when the writing. (Exhibit A) was drawn up and signed, the fact that plaintiffs then supposed the box boards had all been delivered ‘ ‘ except picking up the yard, ’ ’ and the purpose of making the writing, all established in accordance with the tendency of plaintiffs’ evidence, there can be no reasonable doubt as to the soundness of the charge that it would be a ratification of the contract.
It follows from what has been said that the part of the charge, to which exception was taken, that if the credit was given in the first instance to the defendant, through the agency of Lucius Gordon,, and the latter had authority to buy this lumber of the plaintiffs, then the plaintiffs could recover for so much lumber as they furnished under the contract; or if Lucius Gordon undertook to purchase this lumber on the credit of the defendant and the plaintiffs sold the lumber under that ar*32rangement upon the credit of the defendant and afterwards the latter, by his conduct, ratified the contract, that would be binding upon him and would be an original undertaking of his and he would have to pay the bill, is without, fault. - .
The exceptions state that the plaintiffs’ evidence tended to show that substantially all the box boards delivered by them at Gordon’s mill were manufactured into box shooks and sold and pay received therefor and deposited in the Lyndonville National Bank during the summer, fall, and winter of 1904, except 28,-200 feet from Burke, which, the plaintiffs claimed their evidence tended to show, was not manufactured into shooks, but that some four or five thousand feet thereof were used by Gordon Brothers to board up their mill, and that a little later the mill and the balance of this Burke lumber came into .the possession of the defendant by whom it was treated and used as his own. This claimed tendency of the evidence was denied by the defendant, but a careful examination of the transcript, which is made to control, shows the statement in the bill of exceptions fully warranted. Exception was taken to the charge to the effect that if these boards were sold under the same contract and under the same arrangement as the rest of the box boards, and the defendant had them by delivery to Gordon Brothers, and they were kept and used by them and by the defendant without any new arrangement being made respecting them, as the plaintiffs’ evidence tended to show, then the plaintiffs could recover therefor. This part of the charge' was without error.
Plaintiffs’ account of the lumber sold to the defendant was kept on two pages of a book marked Plaintiffs’ Exhibit No. 4. The evidence tended to show that the plaintiffs’ bookkeeper correctly took the statements of the different amounts of lumber delivered from small pass-books carried by the different teamsters who drove plaintiffs’ teams in drawing the lumber, and brought these books to the bookkeeper for that purpose; that the teamsters owned these pass-books, oftentimes and perhaps always, had their personal accounts on them, and after the figures showing the amounts of lumber were taken off by the bookkeeper, they carried the pass-books' away; that the entries of the lumber on all the different pass-books were in the same handwriting. Exhibit 4 was admitted in evidence subject to defendant’s objection that it was not an original book. Lucius *33Gordon testified that he'counted the lumber as it was drawn in by the teams; each one of the teamsters had a little book he carried in his pocket, and that he, Lucius, set the amount they drew on their different books, and also kept it himself on another book which he could not find. The evidence does not show that the entries made by him on the pass-books were anything more than mere figures of amount of lumber, not entered ás a charge for or on behalf of the plaintiffs. We think it fairly inferable from the evidence that the pass-books from which the bookkeeper took the amounts of lumber delivered were the passbooks on which Lucius Gordon set the figures showing the amounts of lumber drawn by the respective teamsters, as “counted in” by him; and that these were the figures from which the bookkeeper made the charges constituting the account against the defendant; Exhibit 4. The evidence tended to show that this account was kept by the plaintiffs in the regular course of business and that the charges therein were the only charges for this lumber they ever made. It seems clear that the pass-books were simply the books on which Lucius Gordon made memoranda of the amounts of lumber as he counted it in, for the purpose of accuracy in the charges to be made by the plaintiffs, and that Exhibit No. 4, not the pass-books, was the plaintiffs^ original book, and as. such properly received in evidence. Gifford v. Thomas’s Estate, 62 Vt. 34, 19 Atl. 1083.
After verdict and before judgment defendant moved to set aside the verdict on various grounds, and on exception to the overruling of the motion, he relies on the second, third, and eighth assignments, which were as follows: Second, because upon the evidence there could not be a verdict rendered in excess of $672.95; Third, because the jury must have charged the defendant for 28,200 feet of lumber that on all the evidence was not manufactured into box shooks; Eighth, because there was no evidence tending to show liability on the part of the defendant except for funds that came into his hands, and it appeared that he had put over to the plaintiffs their share of all such funds. Yet the discussion of the evidence already had is sufficient to show these assignments to be without merit, and they need not be further noticed.
In this vieio of the case I concur in affirming the judgment.