*648STATEMENT. *647One A. Hamer is the owner of certain mining land in Lawrence county. In May, 1896, a syndicate was formed for the purpose of developing the mines on this land. Under an agreement with Hamer the members of the syndicate leased from him ten acres of the land, and they further agreed to pay him a certain amount of money to sink a shaft, build a smelter, put in pumps, and otherwise develop *648the property, all of which was evidenced by a written agreement under date of May 1, 1896. Hamer built the smelter and operated it on his own account for several months. On the eighth of January, 1897, the members of the syndicate formed the' defendant corporation and conveyed to it all of their property. The corporation received the possession of the property from Hamer about the eighth of February following. While Hamer was operating the plant he permitted parties in the neighborhood to stack cord wood on. the ground of the company, with the understanding that he would pay for it if he used it.. The plaintiff claims that in pursuance of this arrangeihent he placed upon the land one hundred and sixty-four and one half cords of wood; that Hamer did not use it, and that after the defendant took possession of the property he sold the wood to it at $1.50 per cord. The present action was instituted before a justice of the peace to recover the price of the wood. It was conceded that the plaintiff delivered the amount of wood claimed; that it had been used by the defendant, and that the plaintiff had not been paid for it. The defense was that the plaintiff sold the wood to Hamqr; that the defendant had received it from Hamer as his property and had entered the amount to his credit on the books of the company. On a trial in the circuit court before a jury there was a judgment for the plaintiff. The defendant has appealed and complains of the action of the court in rejecting competent- evidence offered by it, and in giving and refusing instructions.

At the request of the plaintiff the court gave the following instruction:

Instructions. “The court instructs the jury that if they believe from the evidence in this case that the plaintiff, in the month of February, 1897, sold and deliv- • • ered to the defendant, the C. O. 0. Mining *649Company, one hundred and sixty four and one half cords of wood at the stipulated price and sum of $1.50 per cord, they will find the issues for the plaintiff in the sum of $246.75.”

The objection-urged against this instruction is that it ignores the defense which the evidence for the defendant tended to prove. This'is a mistake. The instruction merely tells the jury that if' the plaintiff sold and delivered the wood to the defendant, then the verdict must be for the plaintiff. Under the instruction the jury was at liberty, to consider the countervailing proof offered by the defendant — that is, that the sale was made to Hamer, and not to the defendant.

The court refused to give the following instructions asked by the defendant:

“1. The court instructs the jury that if you find from the evidence that the plaintiff delivered the wood on the ground of the defendant 'company prior to the 8th day of January, 1897, for and under contract with the witness Hamer or his superintendent Strauser, then you will find the issues for the defendant, even though you may believe from the evidence that the witness Lows as agent of the defendant, afterward promised, verbally, to pay plaintiff for the same.”

RtionsI-reaíonJ" théin!fusins “2. The court instructs the jury that there is no evidence to show that either Hamer or William Strauser was agent or legal representative of the defendant company, and in determining the issues in this case you will disregard any and all declarations and statements of said Hamer and Strauser relative to any contract claimed to have been made by either of them with the plaintiff for and on behalf of defendant.”

The first instruction was properly refused, for the reason that it required only that the wood should have been delivered to and not bought by Hamer. It was *650conceded by the plaintiff that the wood was delivered at the plant while Hamer was in charge of the business, but all of his testimony tended to prove that the wood was to be sold to Hamer, provided he found that he needed it in running the mill. It is apparent that the instruction is insufficient, and if it had been given would probably have misled the jury. The second instruction was also properly refused, because there is no evidence that Hamer undertook to bind the defendant in the purchase of the wood, and it is undisputed that Strauser was the superintendent of the business of the company in operating the mill,- which prima facie gave him authority to purchase necessary füel.

For the purpose of showing that Hamer had no authority to bind the defendant in contracts for the purpose of fuel, the defendant offered in evidence the contract between the members of the syndicate and Hamer, and also the depositions of two of the defendant’s officers. This evidence was irrelevant and the court did right in rejecting it. The plaintiff did not claim that Hamer bought the wood for the defendant.

There is some evidence tending to prove that some of the wood was cut by other parties from land belonging to plaintiff and that these parties hauled the wood to the smelter, under the general arrangement testified to by Hamer and other witnesses, that Hamer would pay for the wood if he used it. On the cross-examination of plaintiff the attorney for the defendant sought to prove by him that at the trial befoi'e the justice he testified that the parties who cut the wood gave him written orders on Hamer for the purchase price of the wood, and that neither Hamer nor defendant accepted the orders. It is claimed that the testimony sought to be elicited had some tendency to prove that Hamer had purchased the wood outright. We do not *651think so. If the orders had been accepted by Hamer, then the effect of the proffered evidence would have been as claimed.

We are of the opinion that the judgment is for the right party and it ought to be affirmed.