On Motion for Rehearing.
[7] As shown by our original opinion, we declined to pass upon the third assignment of error, which complained of the action of the trial court in refusing to give an instruction requested by appellant, requiring the jury to find whether or not appellee Guderi-an authorized Bain to execute the mortgage in question. While the record shows that the requested instruction referred to was marked “Refused” by the trial judge, it does not affirmatively show that appellant excepted to the act of the judge in refusing to give that instruction, and therefore we held that, *964under the law passed by the Legislature In 1913, the failure of appellant to reserve a bill of exception to that ruling denied him the right to have that action of the trial court reviewed by this court.
It is not denied that such is the proper construction of the act of 1913 (Acts 33d Leg. c. 59),' but the motion for rehearing calls our attention to the fact that the law regulating such matters was again amended by an act approved April 2, 1917 (Acts 35th Leg. c. 177 [Vernon’s Ann. Civ. St. Supp. 1918, art. 1974]), and which act was in force when this case was tried in February, 1918. That act amends article 1974 of the Revised Statutes so as to make it read as follows:
“When a special instruction is requested and the provisions of this law have been complied with and the trial judge refuses the same, he shall indorse thereon, ‘Refused,’ and sign the same officially, and such charge, when so indorsed, shall constitute a bill of exceptions and it shall be conclusively presumed on appeal that the party asking said charge presented the same at the proper time and excepted to its refusal, and that all of the requirements of law have been observed, and the same shall entitle the party requesting such charge to have the action of the trial judge in refusing the same reviewed on appeal without preparing a formal bill of exceptions.
“If the trial judge modify such special charge, he shall indorse on said charge, ‘Modified as follows (stating in what particular he has modified the charge) and given, and exception allowed plaintiff (or defendant, as the case may be),’ and «ign the same officially. Such charge when so indorsed shall constitute a bill of exceptions and it shall be conclusively presumed that the party asking said charge presented the same at the proper time, excepted to the modification thereof, and that all of the requirements of law have been observed, and the same shall entitle the party requesting such charge to have the action of the trial judge in modifying the same reviewed without preparing a formal bill of exceptions.”
That article, as it now reads, nullifies the amendment of 1913, which required the complaining party to take a bill of exception to the action of the trial court in refusing a requested instruction, and declared that the failure to do so should be construed as approving and acquiescing in such refusal.
[8] From this it follows that this court fell into error in not considering the third assignment. As above stated, that assignment complains of the action of the trial judge in refusing to give a requested instruction requiring the jury to find whether or not the defendant Guderian authorized Bain to execute the mortgage which Bain had given upon the automobile in question, and after careful consideration of that question we have reached' the conclusion that the requested instruction should have been given, and that the third assignment of error must be sustained, and the case reversed.
Without setting out the testimony in full, we content ourselves with the statement that there was testimony tending to show that the defendant Guderian authorized Bain to execute the mortgage in question; and, if he did so, appellant was entitled to recover against appellee Guderian, because the undisputed testimony shows that he received from Bain and appropriated to his own use the money for which the automobile was sold.
■Hence the motion for rehearing will be granted, and the judgment appealed from will be reversed, and the cause remanded.
Motion granted.
Judgment reversed and cause remanded.