On Motion for Rehearing.
The appellants, upon motion for rehearing, insist that the statement of facts does not show that Wright represented he had the power to make the promise as alleged and testified to by Mount, because the court, in qualifying the bill of exceptions excluded the testimony for any purpose. The witness testified substantially to the same statement twice, to which the appellant'took two bills of exception. The bills are preserved in the statement of facts, and at page 2 the first testimony was given and the bill of exceptions taken thereto. The objection is that agency could not be established by the declarations of the agent. The trial court, in his explanation, says the testimony was not considered to prove agency—
“but w&s considered admissible as tending to prove that said agent assumed to act in the matter complained of, as defendant’s agent, and in connection with other testimony, to the effect that the money obtained from plaintiff was accepted by defendants and withheld by them, with full knowledge of the means used by said agents to induce plaintiff to pay the money to them; also said testimony was considered admissible to show the inducement that led plaintiff to enter into the contract and pay the $500.-00, and give notes to same.”
On page 3 the witness testified that Wright said—
‘ffie had heard a conversation between Stephens and Taylor, and he said, T have the same authority as he has.’ As to this statement, with reference to his authority to make this kind of agreement, will say he said he was agent for the company and that anything he said would stand up.”
The trial court qualified the bill to tbis evidence that the statement of Mount “to the effect that Wright said he had the same authority as Stevenson,” was withdrawn by plaintiff and “was not considered by tbe court for any purpose.” It will be seen the court did not exclude the representations of Wright that he had authority, or that what he said “would stand up,” but only excluded a comparison of authority with Stephens. This we did not think, and do not now believe, affected in the least the representations made upon which we based our opinion. Wright evidently knew as a matter of law he co-uld not bind tbe corporation not yet in existence, and knew that it could not issue shares of stock for a note.
The motion for rehearing will be overruled.