¶1The main question here is whether the evidence is sufficient to support the answey to the first question of the special verdict, namely, that Loomis acted as agent of defendants in purchasing the colts in question.' The trial court held that the answer to the first question was not sup*483ported by evidence and changed it from “Yes” to “ÜSTo,” and we cannot say that the court' below was in error in so doing. There was very little pertinent evidence on the question of agency. Counsel for appellant cite us to some facts and circumstances from which they claim a jury could legitimately infer an agency.
¶2The evidence seems consistent with the idea that Loomis was buying and selling horses on his own account. It appears that plaintiff relied upon statements of Loomis to the effect that he, Loomis,, was the agent of defendants. This evidence was clearly incompetent. Ætna Ins. Co. v. Northwestern I. Co. 21 Wis. 458; Mechem, Agency (2d ed.) § 285. Both of the defendants testified that Loomis never acted as agent for them and that they never authorized him to buy any horses 'for them, and there is no competent evidence to the contrary.
¶3Counsel relies strongly upon evidence of one Mahanna to the effect that defendant Byron Gordon said to Loomis that if he found any horses worth the money to buy them, and claims that this evidence is capable of the construction that it authorized Loomis to buy horses for defendants. But it appears Mahanna did not hear all of the conversation between Gordon and Loomis, and Gordon testified that he merely told Loomis that if he found any horses that looked cheap he would buy them. The evidence is all consistent with the idea that what was said between Loomis and Gordon did not amount to an authorization of Loomis to act as the agent of defendants in buying horses for them. There is considerable evidence in the case tending to show that no agency existed between defendants and Loomis, and we are convinced that there was not sufficient evidence to support the answer of the jury to the first question of the special verdict.
¶4Counsel for appellant seem to rely upon ratification and estoppel, and insist that the defendants ratified the purchase *484by Loomis oil their credit, and that defendants should be estopped to deny the statements and representations made by Loomis as to his agency.
¶5Under this head it is sufficient to say that appellant did not ask that these questions be submitted to the jury, so a jury trial thereon was waived. Sec. 2858m, Stats. The finding of the court below against the appellant’s contention on waiver and estoppel cannot be disturbed, because the preponderance of the evidence is not against such finding. Upon the whole record we are satisfied that the judgment below should not be disturbed.
¶6By the Court. — The judgment is affirmed.