I concur in the foregoing dissenting opinion of Mr. Justice Angstman, with the following additional reasons for my dissent:
The complaint alleges that on March 30, 1930, and for "a long time prior thereto the defendants were the agents of Harrington with authority to collect and sell each season" the crops grown on certain lands farmed by Krogstad under contract with Harrington. There are no allegations in the complaint that Harrington was the undisclosed principal of the plaintiff Harrington Motor Company. Notwithstanding proper and timely objection of defendants, the plaintiff was permitted to introduce *Page 510 evidence of title in the Motor Company at the time of the adjudication in bankruptcy and in the year 1921, and verdict was directed against defendants on the basis of such testimony. Motion for a new trial on the grounds of failure of proof and surprise was denied. The affidavits relating to surprise clearly showed surprise and excuse for failure to offer testimony in opposition of the controverted fact of ownership of the contract, the failure to demand settlement for nearly three years, the intervening death of the cashier of the defendant bank, the existing sickness of the defendant Listug and other excusable errors warranting a new trial, even if the pleadings had disclosed the true contest of ownership in the contract, instead of alleging one theory and proving another distinctly opposite theory of ownership. If the motion of defendants to dismiss is denied, the motion for new trial should most certainly be allowed.