(dissenting). — Among the errors assigned I think there is one that should result in reversing the judgment. I refer to the court’s action in taking from the jury the question of Lathrop’s authority to make, on behalf of defendant, the contract sued on. Although the court admitted evidence on that issue, yet when the testimony was all in, the following instruction asked by defendant was refused and none other of like tenor was given, to wit:
“5. It is incumbent upon plaintiff to prove to the jury, by a preponderance of the evidence, as a part of his case, that Gardiner Lathrop had authority from *595defendant to make a contract with plaintiff for services, upon the basis of an annual salary.”
The plaintiff in his petition alleged the making of a special contract with defendant, whereby he was to receive an annual salary for attention to its legal business in Clinton county. Defendant by answer denied that it had made any such contract. The existence, then, of said special contract was squarely put in issue, and the burden of proving it rested with the plaintiff.
To establish the affirmative of this allegation, plaintiff introduced evidence tending to prove that Lathrop, an agent of the defendant, entered into the contract in its behalf. That was proper, and defendant would be bound, provided, however, that Lathrop was duly authorized by the company to make such a contract, and the proof of this authority was a necessary component part of plaintiff’s case. Without such proof, the special contract' as alleged was not shown. It was an essential link in the plaintiff’s case. Boogher v. Ins. Co., 8 Mo. App. 533. Same case reported, 6 Mo. App. 592, of which we have been furnished a manuscript opinion.
We may well adopt the language of Judge Hayden in the latter case, and say that'the burden was on the plaintiff to prove the special contract and all of its elements, one of which was authority in Lathrop to make it; or, as stated in Mechem on Agency, sec. 276: “Persons dealing with an assumed agent, therefore, whether the-assumed agent be a general or special one, are bound at their peril to ascertain, not only the fact of the agency, but the extent of the authority, and in case either is controverted, the burden of proof is upon them to establish it.”
The case above cited from the St. Louis court of appeals is quite similar to the one at bar. Boogher sued the insurance company for breach of contract of *596an alleged yearly hiring. The answer denied the contract and set up that plaintiff was hired only temporarily. Boogher’s ’ evidence tended to show that Matthews, a manager of agencies, employed him (Boogher) for a year. That of the insurance company tended to prove that Matthews gave Boogher only temporary employment, and that Matthews had. no authority to engage agents for a year; that his authority was limited in that respect. The only difference in the cases seems to be, that in that of Boogher, the answer, in addition to a denial of the contract pleaded in the petition, further alleged that defendant’s agents had no authority to employ respondent Boogher for a year. But that difference is of no consequence, since a general or special denial of the special contract set up in the petition raises that question, for, as already said, the authority of the agent to enter into the alleged contract for and in behalf of his principal, is made an issue in the ease by a simple denial in the answer that such a contract was made. In other words, a simple denial of the special contract sued on not only raises the issue as to whether A. (the agent) in fact so agreed with the plaintiff, but also whether said agent was authorised by the defendant to so contract on his or its account.
It seems to be plaintiff’s contention (and which is adopted by the majority opinion) that the answer admits the authority'of Lathrop, the agent, to make a' special contract sued on. This, I think, is a misconception of the pleadings. The answer may be treated as an admission that the agent had authority to make a contract for services which were to be paid for according to the extent and value thereof (and which the answer alleges was the contract between the plaintiff and defendant), but admitting authority in the agent to enter into a contract of that description is not an ad*597mission that he might bind his principal by a. contract materially different.
In my opinion, then, the trial court eliminated a material issue in the case, and thereby deprived defendant of a defense to which, under the pleadings, it was entitled.