
    KIRK, Respondent, v. THOMPSON, Appellant.
    (167 N. W. 399.)
    (File No. 4286.
    Opinion filed May 1, 1918.)
    1. Evidence-^-Recovery for Well Digging — Unknowingly Dealing With Defendant’s Agent, Counterclaim of His Note, Competency of Note — Erroneous Instruction — Statute.
    In a suit to recover for digging a well for defendant, plaintiff’s theory upon .trial being that one S. was acting as defendant’s agent, who was principal in the transaction, defendant’s answer alleging, first, that S. was in fact the principal, and second,' that defendant was the principal and that plaintiff dealt with . S. without -knowing or having reason to believe that he was acting as defendant’s agent, or that defendant was the undisclosed principal under Civ. Code, Sec. 1691, providing in effect that one may set off against any claim of the principal arising out of such transaction, claims he might have set off against the agent before notice of agency, hold, that under. said statute, the question .whether defendant was entitled to counterclaim a note he held against S., depended upon whether defendant dealt with S. without knowing or having reason to believe that he was acting as defendant’s agent; and an instruction in effect that- if jury found that the contract for the work was 'between defendant and '6., plaintiff could not recover, but -that if they found that the contract was with plaintiff, or that defendant was informed that plaintiff was owner of the well drilling outfit and was the one who would collect for the work, and that the work was done with that knowledge and understanding, plaintiff could recover, was erroneous; that, there being' direct conflict in 'the evidence upon this question of fact, the evidence should have -been submitted to jury, and a refusal of such instruction, if requested, would have been prejudicial error; that the note • should have been received in evidence as a counterclaim. Held, further, that upon the issue which should have been thus submitted, said note as offered evidence would have been competent, and its rejection was prejudicial error requiring reversal, unless appellant’s failure to request an instruction was waiver of error.
    2. Appeals — Error—Instruction on Issue, Failure to Request Instruction, Waiver Ry.
    Error in failing to instruct jury upon a particular issue is waived' by failure to request additional instructions.
    3. Trials — Competent—Material Evidence, Rejection-of, Waiver, By Non-request of Instructions — No Exception, Effect.
    Error in rejection of competent evidence upon a material issue .is not waived by failure to request instructions submitting such issue to jury, nor by failure to except to instructions given.
    Appeal from Circuit Court, Oharfes Mix Gounfcy. Hon. Robert B. Tripr, Judge.
    Action by Qhlarles Kirk, against E. F. Thompson, to recover upon a contract for -digging a well; defendant counterclaiming. (From an order' denying a new- trial, defendant appeals.
    Reversed.
    
      P. A. H os ford, for Appellant.
    
      I. C. Worth, and J. C. Tipton, for Respondent.
    (i) To point one of the opinion, Appellant cited': El diridge v. Eininegar, 105, Pac. 334; Hook, et'alv. Orowe, 100 Mame, 399; Gardner v. Alien, 41 A. M. Dec. 45, and notes cited; Mechem on Agy., Sec. 773.
    Respondent cited: Mechem.' on Agy., Sec. 774) snct cases cffitedl: ■ ' ■ '
   SMITH, J.

Appeal from an order overruling defendant’s motion for a new trial. Plaintiff, Kirk, brought the 'action to recover upon a contract for digging a well. The performance of the Contract and tote amount due thereon were admitted. By way of counterclaim defendant, Thompson, alleged that the contract was. made with one Summerville arid) hot -with plaintiff, Kirk; toaifc at toe time of entering into' the contract defendant held and’ was- the owner of <a note for $60 executed' by Summer-ville to one Thompson; and that hue entered into the well contract to obtain, payment of Ithe .amount dhe on the note'. The defendant pleaded1 toe mote as fa counterclaim, and by his answer tendered in court toe .difference between) the amount due milder the contract and- toe amount due 011 toe' note, and offered to pay ciosts up to toe time of filing the answer. The reply denied the allegations of the 'aounteinclaim.

It appears finorni the evidence in the record, tolalfc 'some months prior to the negotiations -for the digging of the‘well Summerville had sold the well-digging' machinery to Kirk, hut that after such sale Summerville continued to take jobs and work with, the outfit as before toe stile. Kirk and Summerville testified that in conversations prior to the digging of toe well Thompson was informed of toe . sale to Kirk, and that Summerville was ■ assisting Kirk and teaching' him to. run the nig. The conversations with, reference to Idtoinig the work were with Sthnmerville. D'efendtint thereupon offered in eviil'enoe under his counterclaim the promissory nlcfe of Summerville1 with' proof of iite executódri,' assignment to Thompson, -and nonpayment. Appellant's assignments of error ore baiseidl wholly upon the exclusion of this .evidence.

Verdict for respondent for'the amount dUe’on the Contract for digging tole well. The trial count instructed toe julry as follows:

“There áte- mo controversy between toe panties in (this- case with reference to foie amtounit for which ytoulr verdict shoulid be ini ¡the e'vemlt toialt it is in flavor of toe plalimtiff. Tfhie controversy is ¡only with reference to wito whom. the dlefenidanlt, Mr. Thompson, made toe contract, whether Mir. Summerville, as he aonfcemds, ■or Mr. Kirk, as the latter contends. Sto if you find from, toe evidence thbit foe contract to do the wlell work himolved herein was 'between Mr. Thompson, the defendant, and Mir. Summer-ville, who formerly owtaed the outfit, Mr. Kirk Could not recover in this action, because Mr. Thompson’s 'lability would be to Mir. Sumlmiarviilfe, by whom he is not now being sued, but, on the other hand, if you finid -by a preponderance of foie evidence that toe contract, 'express! Pr implied, iwas nloit with Mr. Summerville, but with Mr. KHrk, Iasi he Contends, or that Mir. Thompson was. informed Mir. Kirk Was the owner of tole walhdrillinig outfit there toe first day, and ¡that he (Kirk) Was toe one who would collect for toe work to ble diotoe, anld tolat thereafter they went on and toe work was dtooie with that knowledge amid understanding, Mr. Kiirlc would be entitled to recover An thiiisl case.”

It was pliai-nJtiff’s theory 'anld iwlas stated by his, counsel, in open court, that Summerville Was lacbing as agent for Kirk, who wa© foie principal in toe transaction wito Thompson. In his answer .appellant alleged, first, that Summerville (and molt Kiiirk was in fact the principal, anld1,, sedonid, tolat Kirk wais in fact toe principal, anld that appellant debit Wito Summerville without knowing or having reason to believe that Summerville was1 acting as agent for Kiirlc, and that upon toe latter theory the note was a valid counterclaim against Kirk, toe undisclosed principal who was suing upcln toe comlbraat. Civil Code, § 1691. Under the instruction given by toe ¡ferial court, tolat pfointiff cou'lld not reoovar if toe Contract was in fact between Summerville and1 Thompson, toe jury must have found tolat toe Contract wfasi in fact 'between Kirk amid Thoimpson. It is clear, however, under toe evidence and toe admission of plaintiff’s counsel at tíre trial, lamdNhe jury must have found, that the contract Was made by Sumlmierville 'a's agent of Kirk, and under siedtion 1691, Civil Code, whether Thompson was entitled to Coiuntardiaiiim Summerville’s mote in an action on the 'Qomteact 'by Kirk, the principa!), depended upon the question whether Thompson 'dealt with Summerville wilthbuit knowing or having reason to .believe that Summerville was acting as agent for Kiirk in> the transaction. Eldridge v. Finnegar, 25 Okl. 28, 105 Pac. 334, 28 L. R. A. (N. S.) 227, and note.

Upon this question of fecit there was a 'direct conflict in the evildiar.ice which Should have been submitted to the jury, amid! a refusal of such an instruction would Wave been prejudicial error. N'o request for nm instauiictiom was made by appellant, nior wlais any exception 'fakemi to the instructions given. Upon, the issue 'wlhlioh should itlhuis halve bean submitted to the jury the evidence offered arad rejaobad by the tnilal 'dourt wiouldl have been acmpetemt, amid) ¿ts rejection wfeus prejudicial error which would' require a reversal unless appellant’® failure' toi request an instruction amounts to waiver of Iflhie error.

Error ini failing to instruct the jury tuptomi a particular issue i’s waiveld by failure to request additional áinsitrulctilonis. Quinn v. C., M. & St P. Ry. Co., 23 S. D. 126, 120 N. W. 884, 22 L. R. A. (N. S.) 789. Bulb we are of the vidw. that error in the rejection o!f competent evidence upon a- material issue is not waived (by the failure to request instruction® submitting such issue. to the jury, nor by failure to 'except to the instructions given.

The order overruling appellant’s motion for a new. trial is reversed.  