(dissenting). Under the guise of deciding only a question of fact,, it appears to me that the opinion of the majority conflicts most emphatically with several principles of law and procedure established in this jurisdiction by numerous authorities. Hence, I cannot concur in the conclusion reached by my associates. The assignments of error relate to two propositions: First, that the court erred in not directing a verdict for the defendant at the close of the trial; second, that it erred in not granting defendant’s motion for judgment notwithstanding the verdict.
The rule regarding granting motions for directed verdict is so well settled in this state as to hardly require citation. It has been passed upon in numerous cases, the language only varying. The most recent case is Oakland v. Nelson, post, 456, 149 N. W. 337. This rule is stated in John Miller Co. v. Klovstad, 14 N. D. 435, 105 N. W. 164, to be as follows: on a motion for directed verdict made at the close of the trial, all fair inferences from the evidence must be drawn in favor of the person against whom such verdict is directed, and it was held that it was error to direct a verdict when honest and intelligent men might fairly differ in their conclusions from the evidence. I can regárd the opinion of the majority only as either overlooking or in conflict with this rule. The court has drawn all inferences in favor of the defendant. It has given him the benefit of all doubts regarding the meaning of the evidence, and construed it most strongly in his favor. It has passed upon the whole evidence as though it were an equity case, and in effect held that because the evidence preponderates in favor of the defendant a verdict should have been directed. Practically all the evidence in the case is quoted in the opinion in such order as will best sustain the defense, when under the rule established only the evidence favorable to the plaintiff should be considered in passing upon the motion. The issue'was not one of payment, but whether the contract for *448the plowing was made with the defendant, and, is so, whether it was disclosed who the principal was. It is elementary that, if not disclosed, the defendant is liable. It is nowhere contended that the Bottineau County Investment Company was to pay for the plowing. It lay between the defendant Hilleboe and the First National Bank of West-hope. The only evidence on the part of the plaintiff, susceptible of any construction indicating that the contract was being made for the bank, was his statement that Hilleboe said the bank had the dealing of it. This is an obscure and ambiguous statement. It might mean one thing or it might mean another. The jury, having all the facts and circumstances before it, construed this language and found in favor of the plaintiff. To have reached the verdict, it necessarily follows that the jury must have found that this did not inform plaintiff that the contract was being made on behalf of the bank. That a police magistrate, twelve jurors, and the trial judge construed it one way, and four members of this court construe it the other, would seem to have some tendency to show that honest and intelligent men not only might, but do, fairly differ in their conclusions from the evidence.
Let us see what the evidence favorable to the plaintiff discloses, when separated from the defense and when the inferences which it will bear are drawn in favor of the plaintiff, in accordance with the rule. Hilleboe, the defendant, was vice president of the bank and an officer of the investment company when the transaction occurred. The plaintiff had been a tenant on the farm the preceding season. It is not disputed that he then knew that he was the tenant of the investment company, but in the meantime title had been conveyed to the bank. The fact that it was only taken as security, in view of the circumstances, is immaterial. The statement that the bank had the dealing of it certainly did not tend to show that the investment company owned it. If, in fact, the plaintiff was not advised as to the ownership, Hilleboe himself was liable. True, Hilleboe testifies that he told him who owned it. This is denied by the plaintiff. The evidence which should be considered on this motion may be summarized as follows:
When plaintiff desired to rent the farm for the year 1910, he was informed that it was for sale and would probably be sold, and it was agreed that, if he would plow the land, he should have the use of it for the next season on terms agreed upon, if it were not sold, while, if sold, *449he should be paid $1.50 an acre for the plowing. The land was sold after the plowing was done and before the next season. It is true that plaintiff borrowed $300 from the bank, gave his note therefor, and expected pay for the plowing to be indorsed on his note. This fact is, nothing unusual, nor does it relieve the defendant. Banks often loan money on the strength of contracts, which the borrowers hold with third parties, and rely upon the fulfilment of the contracts to enable the borrower to pay. Making loan and taking note do not constitute payment by the bank in advance for work done.
The plaintiff testified by deposition taken before the trial. While his statements are not as complete as they might be, or as they doubtless would have been had he anticipated statements that were to be made by the defendant on the stand, yet they are to the effect that he was to plow the land and be paid for it when the farm was sold; that the dealings were between him and the defendant; that he first entered into the negotiations with the defendant; that he agreed to plow it for the defendant; that he did not know that the title to the land was in the First National Bank of Westhope. Hilleboe admits that he arranged payment for the plowing, and states that it was carried through as far as he agreed, but claims his arrangement was made on behalf of the bank, and says he told plaintiff that the bank had title to the land, but he admits that he also told him that he would see that the plowing was paid for; and that he acted for the Bottineau County Investment Company when the land was rented to plaintiff the preceding season. Evidence that he knew the year before that it belonged to the investment company cannot prove knowledge that the bank was the principal. When one enters into an oral contract, the presumption is that he is the principal, and he is liable as such unless it is disclosed who the principal is.
C. W. Porter testifies that in 1909 plaintiff saw him about renting the place; that he told him to see Hilleboe; that he afterward understood plaintiff rented it; that the members of the Bottineau County Investment Company at that time were Hilleboe, the defendant, Cooper, the cashier of the bank, George Porter, and himself; that he was secretary. He further testifies that, to the best of his knowledge, all the money that came out of the farm after the first mortgage, was ap*450plied by tbe bank on tbe indebtedness of tbe Bottineau County Investment Company to it.
Hilleboe testified tbat the bank received pay for tbe plowing in addition to tbe purchase price of tbe land; tbat tbe money was paid to C. W. Porter; tbat be agreed tbat tbe plowing should be credited on the-note; tbat no other officer of tbe bank knew anything about the deal, except what be told bis successor when be left tbe bank in tbe fall of 1909, when be left verbal instructions to have tbe contract carried out.
Tbe police magistrate of Westhope was examined as a witness, and testified tbat on tbe trial of tbe case in bis court Hilleboe testified that be did not know for whom be was acting in tbe transactions with tbe plaintiff, — whether it was for tbe bank or tbe Bottineau County Investment Company. If Hilleboe did not know for whom be was acting, bow has tbe presumption been overcome and must this court assume tbat plaintiff knew more about it than did the defendant ? It seems very clear to me tbat, notwithstanding tbe fact tbat tbe weight of the evidence is in favor of tbe defendant, and tbat, if I were a juror and passing upon the whole evidence, I might feel impelled to return a verdict in bis favor, yet tbe jury having found for tbe plaintiff, and tbe question being only as to there being competent evidence to support tbe verdict, under tbe application of the rule to which I have made reference, tbe court is clearly unjustified in bolding tbat a verdict should have been directed for defendant. Ambiguous statements are, with great pains and nicety, vigorously construed in defendant’s favor, when they should be interpreted in favor of plaintiff. Taking tbe defendant’s own statement in justice court, it is apparent tbat be failed to disclose tbat be was acting as agent for another party or who bis principal was, and in such case tbe agent is liable. Beading tbe evidence of Porter and between tbe lines of tbe other evidence, it is apparent tbat tbe seat of tbe controversy lies between tbe bank, tbe investment company, and Hilleboe, tbat tbe investment company owed tbe bank, and tbat, instead of crediting tbe $150 on plaintiff’s note, it applied it on tbe indebtedness of the investment company, and therefore bad nothing left to apply on plaintiff’s note. Tbe defendant desires to cast the burden of bis difficulties with tbe bank upon tbe plaintiff, and tbe majority seem disposed to aid him in doing so.
Some of tbe authorities sustaining tbe rule to, which I have referred, *451some of which state it still more strongly in favor of the plaintiff, are Beiseker v. Moore, 98 C. C. A. 272, 174 Fed. 368, a case decided by the circuit court of appeals for this circuit; Hall v. Northern P. R. Co. 16 N. D. 60, 111 N. W. 609, 14 Ann. Cas. 960; Higgs v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N. D. 446, 15 L.R.A.(N.S.) 1162, 114 N. W. 722, 15 Ann. Cas. 97; Acton v. Fargo & M. Street R. Co. 20 N. D. 434, 129 N. W. 225; F. A. Patrick & Co. v. Austin, 20 N. D. 261, 127 N. W. 109; Galvin v. Tibbs, 17 N. D. 600; Casey v. First Bank, 20 N. D. 211, 126 N. W. 1011; Ernster v. Christianson, 24 S. D. 103, 123 N. W. 711; Dickinson v. Hahn, 23 S. D. 65, 119 N. W. 1034.
In Beiseker v. Moore, 98 C. C. A. 272, 174 Fed. 368 it is held that when the evidence is given the strongest construction which it will bear in favor of the party against whom the motion is directed, if it cannot be said to be more than vague and uncertain, a construction in favor of the party against whom it is directed is properly refused. In Ernster v. Christianson, 24 S. D. 103, 123 N. W. 711, it is held that on such motion the court should assume the evidence of the plaintiff to be undisputed, and give it the most favorable construction for the plaintiff that it will properly bear, and give the plaintiff the benefit of all reasonable inferences arising therefrom.
In what seems to me a very strained and unwarranted effort to reverse this case, the majority do a novel thing by taking into consideration the instructions of the court to the jury. No error is assigned on any part of the instructions. They are not in the abstract, and when the motion for a directed verdict was made, of course, the instructions had not been given the jury, and could not be considered by the trial court in passing upon the motion, and are equally outside the record and irrelevant to the merits of the appeal. This is so plain and elementary and simple a proposition that I cannot understand why it is injected into the main opinion to support a reversal. It certainly establishes a new rule of procedure. An attempt is made by Judge Goss to show that the plaintiff’s testimony is susceptible of more than one meaning. Tie then proceeds to interpret it most favorably to appellant, notwithstanding the rule established by authorities cited. Much comfort for the defendant has been found by reference to the statement of the case and by not resting upon the record, as contained in the abstract. There was no disagreement between the parties as to the accuracy of *452the abstract, and no request that reference be made to the more complete record contained in the statement, and I protest that under such circumstances it is unwarranted and unjust to the parties to go to the original record in quest for evidence omitted from the abstract, or instructions which have not been brought into it or referred to on argument or in brief, to bolster up a reversal and set aside a verdict of the jury on conflicting evidence. But if this is proper, mention may be made of the fact that it discloses that both the bank and the investment company were made defendants in the case, and judgment had in their favor, leaving the plaintiff no remedy except against the defendant Hilleboe. Not only the jury has found in favor of the plaintiff, but the police magistrate so found, and the trial court denied the motion for a new trial, and its order denying such motion should be sustained. This court can and does only reach its decision by a flagrant invasion of the province of the jury.