The testimony delivered by Mr. Joy as to the discharge of the defendant we do not think competent- on the testimony in this record. It was very easy to have proved that discharge by the records of the company, or by Mr. Smith or Mr. Van Hook, or any proper agent of the company, who had personal knowledge of the fact of such discharge. It is obvious that Mr. Joy’s testimony on that subject was wholly hearsay. Whether or not the appellant had been discharged at the time he had his dealings with Mr. Briscoe was the vital point in the case. The fourth instruction, asked by the defendant and refused, should therefore have been given.
*774The defense was in substance, first, that the defendant had not been discharged as a fact; and, second, that,if he had been, he had not been notified of such discharge, and honestly believed he was still the agent, and acted in perfect good faith, then he was not guilty as charged. On this last proposition, the court refused, for the defense, charge No. 3, which is as follows: “If the jury believe- from the evidence that the defendant was in the employ of the Consolidated Adjustment' Company on May 9, 1910, under a contract for employment made with one of their agents, Van Hook by name, and that as such agent he made a contract with B. T. Briscoe in accordance with the rules and regulations of said company, in consideration of which he received eighty-seven dollars and seventy-five cents from said Briscoe, and that said contract was made in good faith, he is not guilty of any criminal act, even though, at the time of making said contract, he was not in the employ of said company, but was ignorant of that fact.” We think, on the facts in this case, this charge, also, should have been given.
We notice no other assignments of error than those specified. Reversed and remanded.
Per Curiam.The above opinion is adopted as the opinion of the court; .and, for the-reasons therein set out, the case is reversed and remanded.