delivered the opinion of the court.
A motion is presented by appellees “ to expunge from the bill of exceptions ” the exception shown to have been taken by appellant to the giving of the instruction to the jury directing their verdict to be for the defendants, appellees. This motion is supported by affidavits, which go to show that when the bill of exceptions was presented to counsel for appellees such exception was not contained therein. But no showing is made to the effect that it was not a part of the bill of exceptions when the same was signed and sealed by the trial judge. The contrary does appear. The motion must therefore be denied.
The only question remaining is as to whether the trial court was warranted in peremptorily directing a verdict for the appellees. There was evidence tending to sustain the appellant’s cause of action. The only defense was that a corporation, and not appellees, had dealt with appellant. But the written order given to appellant was not in the corporate name, and it was in the name of a co-partnership which had existed and done business prior to the formation of the corporation. There was no inherent impossibility in the contention of appellant that this firm still continued to do business after the formation of the corporation. The record shows that the firm name and style under which appellees transacted business as a co-partnership was “ Geo. B. Weise & Son,” and that the corporation was “ George B. Weise & Son.” If the testimony of the agent of appellant is credited, George B. Weise and his son, as individuals, entered into the contract sued on. The letter heads used in the order and in the subsequent correspondence corroborate this testimony. If the testimony of one of the witnesses called by appellees is credited, the agent dealt with a corporation. Here was an issue of fact which should have been submitted to the jury. If a verdict had been returned for appellant, we are not prepared to hold that it would not have been sustained by the evidence, nor that it would have been manifestly against the weight of the evidence. Hence the trial court erred in peremptorily directing a verdict.
The judgment must therefore be reversed and the cause remanded.