¶1The following opinion was filed March 12, 1889:
¶2Aside from the question whether there was sufficient upon the face of the note in suit to put the plaintiff upon inquiry to ascertain if it was given in the course of the business of the agency for the defendant of Fish Bros. & Co. (a question not here decided), the controlling question in the case is, Did that firm have authority to bind the defendant by notes signed “ Fish Bros. & Co.,” without the addition of the word “Agents?” Upon this question the testimony is conflicting, and doubtless would sup*88port a verdict resolving it either in the affirmative or negative. This important question was not submitted to the jury, and is still undetermined. The jury only found that the defendant did not tell Mr. Monroe that Fish Bros. & Co. had authority to execute notes in his business. Perhaps the finding is correct, and yet the fact remains undisputed that the firm had such authority, which was known to Mr. Monroe, the plaintiff’s agent. The finding does not settle the vital question as to the authority of the firm to bind the defendant by notes signed in the firm name alone, omitting such designation. It is perfectly obvious, therefore, that the verdict settles nothing, and the judgment, founded upon it alone cannot be upheld.
¶3By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.
¶4The respondent moved for a rehearing, for the purpose of obtaining a decision of the question whether or not “ there was sufficient upon the face of the note to put the plaintiff upon inquiry to ascertain if it was given in the course of the business of the agency for the defendant of ■Fish Bros. & Co.” It was urged, in support of the motion, that this question was purely one of law upon admitted facts, and that an affirmative answer to it would dispose of the whole case and render a new trial unnecessary.
¶5The motion was denied April 25, 1889.