(after stating the facts).— We have set out the facts with some particularity, out of deference to the very earnest argument and full and able brief of counsel for appellant, as that counsel insists there was no evidence in the case justifying its submission to the jury. We cannot agree to this. The statement shows that there was evidence, contradictory to be sure, but some substantial evidence, in support of the allegations in the petition, to which petition a mere general denial was interposed by way of answer. We do not say that a general denial did not properly put the case at issue. It did, and was sufficient, but it put the affirmations of the petition in issue ; those affirmations were supported by evidence, and while that evidence was conflicting, it rested with the court and jury to weigh it. The jury found fc§u plaintiff and the court held that there was evidence to support that finding and that the finding was not against the weight of the evidence. That concludes us on tha,t phase of the case, Ave holding, on reading all the testimony, that it cannot be said there was an entire absence of substantial evidence to sustain the verdict. We must so hold, to reverse on that ground. This disposes of two of the thirteen propositions made by counsel for defendant.

The remaining propositions cover the laAV of agency and proof thereof, as to the latter it being argued that proof of agency is not established by the declarations of the agent to third parties. There is no doubt of the correctness of this proposition. Agency must be established aliunde the agent’s declarations. In the case at bar, we think this was done. Irwin Avas a general soliciting agent for defendant. Defendant had knowledge of the fact that the. deal by Avhich he was making the sale, came to his house through *113Irwin’s arrangement with plaintiff. He received the benefit of the arrangement. It is clear from Irwin’s own testimony that plaintiff gave him the name of the prospective customer with whom the deal was made, and while Irwin’s testimony tends to deny the arrangement as to division of commission, the testimony of plaintiff and his agent who first took up the matter with defendant’s .agents, is emphatic and clear that division of commission was the very foundation of the transaction. The jury evidently took this view of it. Their verdict is conclusive.

Whether plaintiff was acting for himself or his corporation was a question of fact, on which there was diversity of evidence. The jury found for plaintiff on that issue.

It is urged that the conduct of counsel for plaintiff, in the presence of the jury, was improper. Much allowance must be made to counsel and their conduct must be very improper to cause their clients to suffer from it. Reading the record here, we do not find this assigned error sustained.

Error is particularly assigned to the refusal of the court to instruct with more particularity than it did as to the preponderance of the evidence. We think the instruction given was ample on this branch of the case.

The instructions given by the court, taken as a whole and in connection with that given by the court at its own motion, fairly and correctly put the law of the case to the jury and surely in a very favorable light for defendant.

Error is assigned to the expression in the instruction given by the court at its own motion, to the effect that the jury, in considering its verdict, will “disregard all testimony in the case except that which either tends to prove or disprove the alleged verbal contract on the part of the defendant by which it is claimed that defendant agreed to divide his commissions with the *114plaintiff-.” This has some tendency to submit the question of relevancy of testimony to the jury, which should not be done, but considering it in connection with the rulings made by the court at the trial, when evidence was offered, and in connection with this instruction as a whole, as well as in connection with the instructions given for defendant,, we are not prepared to say that the use of this phrase is reversible error.

Nor, reviewing the whole case, do we discover error in the exclusion or admission of testimony, so serious as to work to the manifest prejudice of defendant. The issues as made by the pleadings, are the ones, land the only ones, to be tried. Evidence must be kept within those issues and examining the record, we think that is what, and is all, the learned trial judge endeavored to do. Finding no reversible error, the judgment of the circuit court is affirmed.