(dissenting.) I cannot concur in the majority opinion for the reason, as I view it, the circumstantial evidence adduced on the trial of this case was amply sufficient to sustain the verdict of the jury, which circumstantial evidence fully appears in the former decision of this case. It is a well-established rule that, where the real facts of a case lie solely within the knowledge of one party, this is an important consideration in determining the amount of evidence necessary to be produced by the other party. Jones’ Ev. §§ 179 and 181. ’Whether or -not *439the said Windherst was the'actual -agent‘of plaintiff for the purposes of collecting.'the notes in question from, defendants was a matter of fact lying peculiarly within the knowledge of plaintiff. It appears from the evidence in this .ca-se that whatever transactions took place between plaintiff and Windherst as to the collection of these notes was -contained in written • correspondence between plaintiff and Windherst, and • which correspondence, an officer of plaintiff testified on the trial of this case, could not be found. The only available testimony open to defendants was the surrounding circumstances so far as they, knew them. Actual authority of a person, not the owner or possessor of a note, to receive payment, need not be established by direct testimony, but may be established by circumstances. The majority opinion in my judgment is opposed by the decisions in every one of the following cases: Reid v. Kellogg, 8 S. D. 569, 67 N. W. 687; McVay v. Bridgman, 21 S. D. 374, 112 N. W. 1138; Campbell v. Gowans, 35 Utah, 268, 100 Pac. 397, 23 L. R. A. (N. S.) 414, 19 Ann. Cas. 660, and exhaustive notes; Bautz v. Adams, 131 Wis. 152, 111 N. W. 69, 120 Am. St. Rep. 1030; Doe v. Callow, 64 Kan. 886, 67 Pac. 824; Doyle v. Corey, 170 Mass. 337, 49 N. E. 651. In each of the foregoing cases, the circumstantial evidence, upon which the agency of the person to whom the payment was made was predicated, was more weak than the circumstances of this 'case. In Bautz v. Adams, the Supreme Court of Wisconsin under far weaker circumstances sustained actual agency. In Campbell v. Gowans, under much weaker circumstances the Supreme Court of Utah sustained the contention of defendants that the circumstances were sufficient to sustain the existence of implied or ostensible agency. In Doyle v. Corey, the Supreme Court of Massachusetts sustained implied authority under more scant -circumstances than appear in this case. The majority opinion in this .case, in my judgment, is the most flagrant misconception and perversion of the effect of circumstantial evidence which I have ever observed, and is a flagrant usurpation of the fundamental province of the jury.
POLLEY,. J., concurs in views of McCOY, J.