dissenting.
It is with regret that I am unable to agree with the conclusions reached by the other members of the court in the above opinion. My reasons for dissent are briefly stated thus:
The plaintiff, in his notice of motion, alleged that the defendant made a contract with him; the defendant, in its grounds of defense, states that it “denies any contract between the plaintiff and defendant in the manner alleged in the notice of motion.” The validity of the alleged contract was thus made a clear-cut issue by the pleadings.
It then became the duty of the plaintiff to prove, by a preponderance of the evidence, that the agent with whom *324he dealt had either the express or implied authority to bind the defendant corporation, or that the unauthorized acts of the agent were duly ratified. The plaintiff testified that all his negotiations were had with one Howard Gerhard, who was the secretary of the defendant corporation, and that the contract was made with him. The plaintiff then rested. Thereupon, the defendant introduced several witnesses who testified that Gerhard had no authority to make any such contract, and Gerhard stated that he “told him (the plaintiff) that I had absolutely no authority whatsoever to pass on anything of that nature; that my authority was limited; that I had never made any leases or any agreements, and under the charter of my company I have no right to obligate our company.” By this and other like evidence the defendant met and overcame the inference from plaintiff’s testimony that Gerhard was authorized to act for defendant. This evidence was not denied, and stands in the record as an established fact. No attempt was made to show that any agreement Gerhard may have made with the plaintiff was ratified by the defendant, or that the defendant’s course of dealing with plaintiff was such as to estop it from repudiating the unauthorized act of Gerhard.
Such being the evidence, the defendant was well within its right when it raised the objection copied in the majority opinion to plaintiff’s instruction. The jury might have believed all the hypothetical statements contained therein, and still the plaintiff would not be entitled to recover unless they believed the agent had the express or implied authority to make the contract. Because the defendant might have requested the court to give an instruction dealing with the scope of the agent’s authority and did not, does not cure an erroneous instruction which purported to embrace the plaintiff’s whole case.
From what has been said it follows that in my opinion the ground of the objection was sufficiently stated in the *325exception to the instruction, and that even if it were not the motion to set aside the verdict should have been sustained because the plaintiff failed to prove a case which would entitle him to recover.
I think, therefore, that the verdict of the jury should be set aside, the judgment reversed, and the case remanded.
Epes, J., concurs in this dissent.