6856

#### WOODWARD v. CAVE.

1. Evidence. — Agencz may be shown by matters within the knowledge of the witness, and by acts of the alleged agent.

*%*Nonsuit. — On appeal from refusal of nonsuit this court will consider evidence offered by defendant after refusal of motion, and evidence here submitted by defendant referred to to sustain refusal of non-suit moved on ground of failure to prove agency.

Before Hydrich, J., Barnw-ell, Spring Tema, 1907.

Affirmed.

Action by Edward' F. Woodward against Dizzie M. Cave. From judgment for plaintiff, defendant appeals.

*Mr. B. T. Rice,*for appellant,

cites: *Burden wm on plaintiff to show authority of T. S. Cme & Co-, to- bind! defendant:*3'9 S'. C, 554; 17 S. €., 338; 53 S. €., 114.

*579
      *Messrs. Davis & Best,*contra,

cite: *Agency may be proved by agent:*137 Ind., 197; 33 Am. D., 724.

April 11, 1908.

T'he opinion of the Court was delivered ¡by

Mr. Justice Jones.

The complaint in this action alleged that on the l'3th day of June, 1900, plaintiff traded defendant a horse 'worth $175 for a mare and' agreed to give $100' to hoot, 'giving three notes to defendant for said sum which were secured! 'by a 'chattel mortgage on- the miare; that defendant warranted the mare to be sound and safe for ladies to drive, ¡and not over six years old; that she was unsound, dangerous to drive, refused -to work and was ¡over six years old. That notwithstanding defendant knew said warranty to be false, she refused to rescind the contract and return his horse, although demand was made for it and the mare offered to 'be -returned. That defendant disposed of -plaintiff’s horse in order to cheat and defraud 'him out of the same to ¡his damage. Judgment was demanded that the notes and mlortgages be declared null and void and delivered up for -cancellation and for $500 damages.

Defendant denied all the allegations of t'he complaint, alleged- that she w;as a stranger to the transaction between plaintiff and T. S. Cave and -is not bound thereby. Plaintiff recovered judgment for $27'5.

The defendant’s exceptions raise the questions which we now consider.

1 1. It appears that the transaction was between plaintiff and T. S. 'Cave, the husband' of the defendant, and one of the issues was whether T. S-. Gave was the agent of defendant. There was no error in admitting the testimony of E-. F. Woodward that T. S. 'Gave was acting in the transaction as the agent -of defendant. The witness was not allowed to prove the agency by the mere declarations of the agent, but be was permitted to tes*580tify as to matters within 'bis knowledge and as to the acts of the alleged1 agent.

•S The motion for nonsuit was properly refused.

*2*
      **In determining whether -there should he a reversal for failure -to grant a -nonsuit, this- Court will consider not only -tiie testimony offered in behalf of plaintiff but also that offered in behalf of defendant after refusal of nonsuit. *Hicks*v. *Southern Ry.,*63 S. C., 576, 41 S. E., 753; *Fales*v. *Browning,*68 S. C., 19, 46 S. E., 545.

The defendant contends that there was no -evidence connecting her with the transaction. There was evidence that' T. S'. Cave w'as general agent in conducting business for defendant with power of -attorney to sign her name, that the said notes and -chattel- mortgage were taken in defendant’s name, that T. $. Cave kept on hand bank notes with the name of his wife, the defendant, printed thereon as payee, and that he was; accustomed to- negotiate such notes at the •bank, indorsing her name thereon -with her knowledge and consent, that the -chattel mortgage was recorded in- her name and the advertisement for sale of the mare under said -mortgage was in her name. This was some evidence connecting defendant with the transaction. The defendant did not testify. Under -instruction to’ which no exception -has been taken the *jury*have found for the plaintiff and we will not disturb the verdict.

The judgment of the Circuit Court is affirmed.