(dissenting).
I am of the view that the court should not have directed a verdict for defendant but should have sent the case to the jury with proper instructions. It will not be necessary to repeat the evidence as outlined in the majority opinion. I think the majority opinion in effect assumes that the bond was a forgery. That, however, was an issue in the case and there was no presumption that it was a forgery. This was an affirmative defense set rip in the defendant’s answer, and the burden of proof as to that issue was upon it. Rule 8(c), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
The bond and the note were in the possession and under the control of Colvin, in whose favor the bond purported to have been issued and to whom the note was made payable. He placed these instruments in escrow. Evidence of the possession of Colvin was not only evidence of the delivery of the instruments but of his acceptance of them. It is not necessary that delivery be evidenced in any particular or prescribed manner. The fact that a Missouri statute shifts the burden of proof to the plaintiff, where the defendant’s verified answer denies execution of a written document, does not change the rule in Federal court. We are bound to follow the rules of civil procedure unless they infringe some substantive law. Fort Dodge Hotel Company v. Bartelt, 8 Cir., 119 F.2d 253. The inst ruments appeared to be regular upon their Cace. The bond purported to be executed under the seal of the defendant company, and it came from the possession of the party in whose favor it was drawn. The telegram from the company to the plaintiff in answer to his inquiry as to the authority of Nye to execute bonds, not only advised plaintiff that Nye had such authority within certain limitations, but referred plaintiff to Evans for “further information.” Evans is not referred to in this telegram as a branch manager but as “our manager your city.” As manager he was defendant’s representative in such transactions as took place within his jurisdiction. In other words, so far as such transactions were concerned, the plaintiff had a right to treat him as the defendant. When plaintiff, therefore, went to Evans for “further information,” he naturally had a right to assume that he spoke with authority concerning this bond transaction. Evans is not to be considered as an expert witness giving an opinion, but as an officer making binding admissions. He told plaintiff that the bond was signed by defendant’s authorized agent and that it represented its binding obligation. Evans was the only officer of the defendant participating in this transaction in Kansas City. What he said about this transaction was admissible against the defendant, and hence the testimony of the plaintiff and of Mr. Riley should not have been stricken. This testimony established, prima facie at least, the execution of the bond by an authorized agent of the defendant.
The Supreme Court of Missouri, in James H. Forbes Tea & Coffee Co. v. Baltimore *402Bank, 345 Mo. 1151, 139 S.W.2d 507, 509, said:
“The rule is well settled that ‘a manager of a company possesses the most general and inclusive powers possessed by any officer of a corporation, and that unless his authority is specifically restricted it is coextensive with the powers of the corporation itself, and he has authority to do any act in its behalf which is usual and necessary in the ordinary course of the company’s business, or which he is held out to the public as having authority to do. The fact that he occupies the position of manager implies his authority to do anything that the corporation itself may do, so long as the act done pertains to the ordinary business of the corporation.’ * * *
“Where a corporation puts the agent forward as a general agent or manager or places him in a position where others are justified in the belief that his powers are general, the restrictions that may be imposed privately on the agent are immaterial, except as between the corporation and the agent, and cannot affect the rights or remedies of third parties dealing with the agent who have no knowledge of such restrictions.”
In the Forbes case, the manager was the manager of a branch office. Here, the manager was referred to by the company as “our manager.” I think, therefore, it could not properly be said as a matter of law that there was no evidence of the execution and delivery of the note and bond.
Was there evidence from which the jury might properly have found the defendant estopped to deny the actual execution of the bond? The plaintiff was referred to Evans as the defendant’s manager in Kansas City. Plaintiff relied upon what Evans told him and acted upon his advice with the knowledge of Evans and therefore of the company that he was so acting. There is nothing to indicate that the plaintiff had any knowledge as to limitations of the authority of Evans as defendant’s manager. It is elementary that where a principal refers another to a third person for information, the principal will be bound by the statements made by such third person. Quirk v. Bedal, 42 Idaho 567, 248 P. 447; Oliver v. Huckins, Tex.Civ.App., 244 S.W. 625. Evans was not only the person referred to by the defendant who might furnish further information relative to the transaction here involved, but he was confessedly the manager of the defendant and in that capacity represented it. Defendant should not now be permitted to say that he was without specific authority to speak for it. If we assume that the parties were equally innocent, still it was the conduct of Evans which brought about plaintiff’s loss, and under such circumstances the defendant for whom he acted, other things being equal, should bear the loss.
There was another ground on which I think the case should have gone to the jury. Defendant, for the purpose of comparison, put in evidence the genuine signature of' its manager Nye. Section 638, Title 28 U. S.C.A. provides that: “In any proceeding before a court or judicial officer of the United States where the genuineness of the handwriting of any person may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for comparison by witnesses, or by the jury, court, or officer conducting such proceeding, to prove or disprove such genuineness.”
Did this genuine signature tend to prove or did it tend to disprove that the purported signature of Nye attached to the bond was spurious? The jury on examining this signature might have concluded that the signature to the bond was the genuine signature of Nye. In any event, it seems to me it was for the jury to say. Broadway Bank v. Stroud, Mo.App., 51 S.W.2d 555; State v. Pace, 269 Mo. 681, 192 S.W. 428, 430. In the last cited case, the Supreme Court of Missouri, in discussing a statute, Mo.St.Ann. § 1751, p. 4020, somewhat similar to the Federal statute, among other things, said: “It appears from the wording of the statute that, while the writing thus offered must be ‘proved to the satisfaction of the judge to be genuine,’ the jury is not necessarily bound by the judge’s conclusion upon the matter, for ‘such writing and the evidence respecting the same may be submitted to the court and jury,’ etc. This, it seems, modifies the old rule that the jury could not pass upon any collateral issue concerning such writings.”
It will be observed that the Federal statute specifically provides that the proved handwriting “shall be competent evidence as a basis for comparison by witnesses, or by the jury.”
In Broadway Bank v. Stroud, supra [51 S.W.2d 556], the Court of Appeals of Missouri said: “We think the court could have refused the introduction of the note until this or some other evidence of the execution *403was offered, but, since the note had been offered, and been admitted in evidence by the court, we think it was error to refuse the submission to the jury of the genuine signatures of the defendants; that is, the signatures upon their answer which they would be estopped to deny were genuine, so that the jury could examine by comparison with the signature on the note.”
The action here was based upon the bond and not upon the note and the genuine signature of Nye was in evidence and could not be disregarded even though it was introduced by the defendant.
I am of the view that the judgment appealed from should be reversed and the cause remanded with directions to grant a new trial.