Gisborn v. Milner. well and Milner of the money advanced by them for litigation and development, and to revive the provisions of the contract of August 27, 1894, providing that such money so advanced by Bothwell and Milner should apply on the purchase price of the interest agreed to be conveyed by Gisborn to Bothwell and Milner. If this construction is to be given to the contract, it would have the effect of making Gisborn, the creditor of the Geyser Mining Company to the extent of $7,056.90, and the "account of said Bothwell and Milner for money advanced for litigation and development, etc., amounting to the sum of $7,056.90," immediately becomes the account of Gisborn. The only surrounding circumstances shown on which plaintiff asks that his construction be given to this clause are that plaintiff is quite an aged man, while defendants are in the prime of life, and that plaintiff insisted that these words be added to the contract before he would sign it. It would seem that the words were written by Gisborn's attorney, so that plaintiff is in no position to claim a strained construction favorable to him simply because he desired them inserted. If he intended that a credit of more than $7,000 should be transferred from defendants to himself, he should have inserted such a provision in apt words, and not left it to a construction of an ambiguous sentence. Words are constructed most strongly against the party using them. But the paragraph can hardly be said to be ambiguous. "As per their contract dated August 27th, 1894," plainly qualifies the word "advanced," and is used simply to identify the account of Bothwell and Milner. They were not inserted when the contract was originally drawn because defendants evidently deemed the account already sufficiently described. The other errors complained of by plaintiff grow out of the construction placed on those words by the trial court, and are disposed of by following the 2 trial court's construction of the contract; and, following this construction of the contract, the record Shafer v. Russell. contains evidence to support all the findings of the lower court. This is a law case, and on appeal this court does not pass upon the weight of the evidence when there is a substantial conflict, or when there is competent evidence to support the findings. We find no error in the record. The judgment is affirmed, with costs. BARTH, C. J., and MCCARTY, J., concur. MARY A. SHAFER, Appellant, v. GEORGE RUSSELL, Respondent. No. 1594. (79 Pac. 559.) 1. Sales: Replevin by Seller: Evidence. It is within the discretion of the trial court to refuse to admit new evidence on redirect examination. 2. Same. The exercise of the trial court's discretion in refusng to admit new evidence on redirect examination will not be reviewed on appeal unless abuse appears. 3. Same. Where a witness had testified to a fact on her direct examination, it was no abuse of discretion to refuse to permit her to testify to the same thing on redirect examination. 4. Same: Damages: Pleading. Revised Statutes 1898, section 3165, provides that in replevin the jury may, in their verdict, assess the damages, if any are claimed in the answer, which defendant has sustained by reason of the taking or detention of the property; and, by section 2960, an answer must contain a statement of the facts constituting the ground of affirmative relief asked for. Held that, where a defendant in replevin desires damages for the taking or detention of the property, he must set up his claim by a statement of the facts, and a mere clause in the prayer for relief asking for damages is insufficient. It is proper for the court, in instructing the jury, to assume the existence of those facts which are shown beyond controversy. Shafer v. Russell. 6. Same: Agency: Ratification by Principal. Where one adopts a transaction in his behalf made by an agent, even though the agent exceeded his authority, the principal must adopt it in its entirety, and cannot adopt a part which has been beneficial, and repudiate the rest. 7. Same: Instructions. In replevin for personal property delivered to defendant by plaintiff's agent, plaintiff claimed that the agent exceeded his authority, in that he delvered it without the price having been paid, and defendant relied on matters constituting a ratification by plaintiff. Held, that it was proper to refuse an instruction that the principal is not bound where the agent exceeds his authority. 8. Same. An instruction that, where chattels are sold to a vendee on condition that the title shall not pass until full payment of the purchase price, all payments made prior to the vendee's default became forfeited to the vendor, was properly refused as an incorrect statement of the law. (Decided February 11, 1905.) Appeal from the Third District Court, Salt Lake Action by Mary Shafer against George Russell. From a judgment in favor of the defendant, the plaintiff appealed. AFFIRMED. James D. Pardee, Esq., for appellant. The first error complained of by appellant was upon the admission of evidence. The plaintiff was asked the direct question. "What instructions did you give, Mr. Bell, with respect to putting Mrs. Loomis in possession?" Which was objected to as being improper redirect examination and it not appearing to have been in the presence of Mrs. Loomis, and the court sustained the objection. The agent's authority for putting Mrs. Shafer v. Russell. Loomis in possession was a fact in issue, or relevant to the issue, and it was proper to determine whether he had obeyed his authority or not with respect to establishing the fact of delivering the property to Mrs. Loomis. In the case of Gestering v. Fisher, 46 Mo. App. 603, the court says: "In an action wherein a principal is sought to be held on a contract made for him by an agent, his instructions to the agent are always admissible as evidence of the extent of the agent's actual authority if the extent of the authority is in issue in the case.” To the same effect are cases of Paul v. Brown, 58 N. H. 93; Bank v. Bank (C. C.), 3 Ohio Dec. 141; Brantly v. Life Ins. Co., 52 Ala. 554. Where the power of an agent is not exhibited at the time of the contract, and does not form a part of it, the principal may introduce evidence to show that the agent • was without authority to make the contract in question. Chaffe v. Stubbs, 38 L. A. 656-658; Bank v. Steamship Co., 95 Cal. 1; Thatcher v. Kancher, 2 Col. 698; Mininger v. Knox, 8 Minn. 110. The authority of an agent may always be shown and be shown by parol evidence. Lyon v. Thompson, 16 Ia. 62; Snow v. Warner, 51 Mass. (10 Metc.) 132; Lunford v. Smith, 12 Gratt. 554; Dean v. Everett, 90 Ia. 242. The court erred in refusing to strike out the testimony of the witness Bell relating to a chattel mortgage that he had asked Mrs. Loomis to sign a month after she had taken possession. It was shown by Bell's testimony that he had no authority to ask her to sign the mortgage. This testimony came out on cross-examination over the objection of the plaintiff, and it was moved by plaintiff that the same be stricken out. This testimony was prejudicial to the plaintiff, as it had a tendency to show a waiver of the conditions of the contract of sale. The evidence was not shown to be authorized by plaintiff, she knew nothing of it and the transaction took place long after the trade was made and Bell's au Shafer v. Russell. thority had ceased, it being outside the scope of his authority and not being empowered to do so specially, he had no implied power to do the act. Where an agent exceeds his authority conferred, his acts will not bind the principal. 1 Ency. of Law (2 Ed.), 986, note 3; King v. Levy, 13 So. Rep. 282; Towle v. Leavett, 23 N. H. 374; Reaney v. Culbertson, 21 Pa. St. 507; Soule v. Dougherty, 24 Vt. 92. A broker has no implied authority to sell personal property, on credit, except when specially empowered to do so. 4 Ency. of Law (2 Ed.), 964, note 4; Wilshire v. Suit, 1 Campbell 258; Illinois v. Delafield, 8 Paige (N. Y.), 527; 1 Ency. of Law (2 Ed.), p. 1014; Burks v. Hubbard, 69 Ala. 379; Payne v. Potter, 9 Ia. 549; Graul v. Stetzel, 53 Ia. 715; School District v. Ins. Co., 62 Me. 330; Mfg. Co. v. Giran, 65 Mo. 92; Taylor v. Starkey, 59 N. H. 142. Parties conversant with the value of real or personal property may, in connection with the facts, state their opinions of the value. Springfield & S. Rd. Co. v. Calkins, 98 Mo. 538; Nelles v. McCarn, 35 Barb. 115; Clarion Bank v. Jones, 88 U. S. 21 Wall., 325; Wright v. Quirk, 105 Mass. 44; Seyfarth v. Road Co., 52 Mo. 449; Palmer v. Smith, 56 Atl. 516; Cluck v. Road Co., 79 S. W. 80; Ramish v. Kirshbraun, 90 Cal. 581-582. "In an action for damages an instruction which assumes that the plaintiff has proven damages is in effect a usurpation of the province of the jury by the court and necessarily prejudicial to the defendant, notwithstanding the fact that another portion of the charge tells the jury that they are the judges of the facts and the credibility of the witnesses." To the same effect are the cases of People v. Glassman, 12 Utah 238; Hawley v. Corey, 9 Utah 175; Haun v. Railway, 22 Utah 346; Wood v. Steinan, 9 So. Da. 110; Dennie v. Johnson, 8 N. Da. 153; Dean &c., v. Ross, 105 Cal. 227; Mabb v. Stewart, 133 Cal. 556-563. It is erroneous for the court to assume in its instructions to the jury that a certain fact exists, although |