[File No. 6101.]

#### TONY MISCHEL, Respondent, v. DAVID HARNDEN, Appellant.

(246 N. W. 644.)

Opinion filed January 26, 1933.

*C. Ii. Starke,*for appellant.

*108
      *Murbha & Murlha,*arid *Simpson, Maclcoff*& Kellogg, for respondent.

*109Birdzell, J.

This is an appeal from a judgment, amended judgment and order of the trial court denying the defendant’s motion for a judgment notwithstanding the verdict or for a new trial. The action is one in claim and delivery. The facts necessary to an understanding of *110tbe questions involved on appeal may be briefly stated as follows:

In tbe year 1931 tbe plaintiff, Tony Mischel, held a dealer’s contract for handling Durant cars in Dickinson, North Dakota. He did business under tbe name of Miscbel Motor Sales Garage. In tbe latter part of May of that year be bad a conversation with tbe defendant, in which be spoke of having a sale for a car to one Jones of Beach, North Dakota, who bad paid $25 down on tbe deal, and be desired to have tbe defendant advance him tbe money with which to obtain a car from tbe distributor in Bismarck. On May 25, 1931, tbe defendant gave him a check for such advancement in tbe sum of $755, a portion of which, according to Mischel’s testimony, was money belonging to him on account of a prior deal or deals. This check was cashed by Miscbel and he later bought a draft for $117 which paid for tbe car in question. He took tbe car to bis garage in Dickinson and placed some extra equipment upon it. Tbe sale to Jones fell through and during that season, up until sometime in December, it was used by Miscbel, under a dealer’s license,'for both demonstration and pleasure. During that time it was driven a distance of some 3,000 to 6,800 miles. Tbe defendant obtained possession of tbe car by representing that be desired to use it for a little while. He later returned some articles-in tbe car that belonged to Miscbel but declined to return tbe car, whereupon tbe instant action was brought. Tbe plaintiff recovered and tbe defendant appeals.

Error is predicated upon certain rulings on evidence and upon tbe ruling of tbe trial court denying tbe motion for judgment notwithstanding tbe verdict or for a new trial. Tbe plaintiff admitted receiving tbe defendant’s check for $755 as an advancement for tbe purpose of buying tbe car in question to carry out tbe Jones sale. Tbe defendant testified that there was an arrangement whereby be was to advance money to buy cars for tbe purpose of resale and to tbe advancement of $755 on May 25th for tbe specific purpose of purchasing tbe car in question for resale to Jones. When asked for what purpose be advanced tbe money be answered “To buy this de luxe car,” and tbe answer was stricken as a conclusion, but be was allowed to testify that tbe money was advanced upon tbe representation that Miscbel bad a sale for tbe car to Jones. He also testified that a short while before be bad advanced money for tbe purchase of a car which was later sold *111
      *to*one DeLaney, but an objection to this evidence was sustained in -connection with a ruling on an offer of proof concerning tbe DeLaney deal. In tbis offer it was proposed to show that Harnden bad advanced tbe money for tbe purchase of tbat automobile and that tbe note and conditional' sales contract ran from DeLaney to him, Harnden. Tbe court said “I think I will confine tbe testimony to tbis car. Tbat is tbe only transaction there was. As I understand it tbat was tbe only car.” And, further, “I think you have to show tbat there was a condition of agency existing between these parties, if you show anything along tbat line.” Harnden was permitted to testify later tbat tbe money be advanced on May 25th was for tbe purchase of tbis particular ear and tbat it was contemplated when tbe sale was made- tbe proceeds were to go to him. When admonished to state just what be and Mischel had talked about be stated “He said be would go down and bring tbe car home and tbat be bad a sale for it at Beach, Jones of Beach; tbat tbe other car was sold (meaning tbe DeLaney car) but be got tbis in place of it to sell to Jones at Beach. I told him, ‘all right,’ I told him maybe I couldn’t do it right away, tbat I would wait a few days." He said it would be all right but be wanted it right away and be bad a sale.” Tbe DeLaney contract and note were offered in evidence but ruled out under tbe objection tbat they were incompetent, irrelevant, immaterial, and no foundation laid. Tbe prior rulings clearly .indicated tbat tbe court considered such evidence irrelevant. An offer of proof was made to tbe effect tbat tbe defendant desired to show tbat under tbe arrangement whereby Harnden was to advance money to Mischel be bad advanced money for tbe purchase of cars, tbat one sale bad been consummated and tbat the papers were executed in pursue anee of tbat arrangement, tbat a car was purchased on May 15th with money advanced by Harnden which was later sold to DeLaney, and tbe note and conditional sales contract ran in favor of Harnden as owner of tbe car and tbat title was reserved in him; tbe purpose being to show tbe arrangement tbat existed between tbe parties as to tbe purchase and sale of automobiles and its bearing upon tbe -purchase of the car in question, and tbis offer was rejected.

Tbe rulings of tbe trial court clearly indicate tbe court -was of the opinion tbat tbe terms of tbe contract of agency, upon which the defendant relied, bad to be established by what was said and done with *112respect to tbe advancement of $755 on Hay 25tb ; that is, as to whether or not it was agreed that this money was to be handled by Mischel, as agent for Hamden) in purchasing the car in question, or whether the money was loaned. The testimony with reference to the terms of the agreement is somewhat vague, doubtless because there was little said at the time which would tend to definitely characterize the transaction as creating an agency or as establishing a debtor and creditor relation. It is clear from the testimony, however, that another car had been previously purchased from the distributor to be sold to Jones of Beach and that it had been sold to DeLaney, and the car in question was being purchased to fill the Jones order. What was done with respect to the DeLaney car, therefore, is an evidentiary fact quite closely connected with the advance on May 25th and the purchase of-the car in .question. If in the sale to DeLaney, Ilarnden was considered the owner and if the deferred payments were being made to him to reimburse him for the advance, it would seem that this is a strong circumstance tending to indicate that the second car (the car in question), purchased to fill the Jones order, was to be similarly dealt with and as tending to negative the contention of the plaintiff that the advance was merely a loan.

While it is true that one transaction does not prove a course of dealing, the evidence in this case shows a sufficient connection between the DeLaney deal and the prospective J ones deal as to make them in fact part of the same general transaction; so that what was done in the DeLaney deal by way of evidencing the interpretation of the parties with respect to the transaction is relevant as tending to show what they intended with respect to the prospective J ones deal. Particularly is this true here, since the evidence does not show a definite understanding as to whther the money was being loaned or was being advanced only for a particular purpose.

The principles which we deem applicable in determining the admissibility of the evidence reposed in the offer of proof are well stated in Mechem on Agency, 2nd ed., Sections 261 and 262, as follows:

> “Section 261. The existence of agency is a fact, and like other facts may be proved by any evidence, traceable to the alleged principal, and having a legal tendency to establish it. . . .

> “For the purpose of making this proof, a wide range may often be *113properly given to the testimony, provided that that wbicb is offered bas a real probative tendency toward tbe main question in issue. . . .

“Section 262. As bas been seen, evidence of agency in a given case may sometimes be supplied by proof of agency on other occasions. "Whether this is true or not, in a given case, depends upon a great variety of circumstances. Tbe act in question may be so closely connected in time or character with tbe one proved as to leave no room for doubt. It may appear that tbe act in question and tbe one proved are parts of tbe same transaction or series of transactions. The acts proved may show a course of dealing of wbicb tbe act in question is seen to be a part. This bind of evidence is strengthened as tbe acts proved increase in number, in likeness and in contiguity.”

Of course, agency, like any other fact, must be proved, and the person alleging it bas tbe burden of proving it by a preponderance of tbe evidence. Being of tbe opinion that tbe evidence offered bad a proper bearing upon tbe issue wbicb could not otherwise, under this record, have been resolved by any clear and positive evidence, tbe ruling complained of was prejudicial error.

It follows that tbe judgment appealed from must be reversed -and tbe cause must be remanded for a new trial. .

Nuessle, Ob. J., and Burke, Oij-etstiaNSON and Burk, JJ., concur.