Page:North Dakota Reports (vol. 1).pdf/190

 authorized, not by express authority, but in the usual course of business, to give information upon just such points. The inquiries were made within a few hours after the wheat was received, and, it is fair to presume, while it remained in his possession.” The difficulty with this proposition is that, in all of its material features, it is wholly without support in the testimony. There is literally no evidence in the record tending to show that Lighthall “had charge of that elevator.” Much less is there evidence that he had “exclusive control of the business connected therewith.” It is not incompatible with the evidence that Lighthall acted in a purely subordinate capacity, and that other officers and agents of defendant had the general supervision of defendant’s business at said elevator. It is certain, at all events, that no testimony was putin the record, tending to show any general agency in Lighthall. The testimony shows that his duties were special and circumscribed. Nor is it true that there is any evidence sustaining the claim of counsel that Lighthall had authority “in the usual course of business,” to give information upon “just such points.” No evidence was offered showing what the usual course of business was at that elevator or at any elevator. In the absence of proof, the court cannot arbitrarily assume the existence of any particular course of business at any elevator with reference to giving information to the public concerning transactions which are closed and completed before the inquiries are made. The statements in question may have been, and doubtless were, true, as a matter of fact. But, asa court of law, we must determine whether the statements were legally competent as evidence. If they were inadmissableinadmissible [sic] under rules of evidence firmly established, and resting upon well-approved considerations of public policy, and expediency, they must be excluded, whether true or untrue.

For the reasons and upon the grounds already stated, we must hold that it was prejudicial error to admit the evidence against defendant’s objections, which were seasonably made thereto. It seems probable that competent evidence to sustain the allegations of the complaint can be readily obtained, and we therefore direct that an order be entered setting aside the verdict, and reversing the judgment herein, and granting a new