after stating tbe ease: It was stated on tbe argument that the Court thought tbe order for tbe goods was not binding upon tbe defendant because signed simply “Frank D. Jones, Superintendent,” without indicating for what company be was superintendent. • Tbe reason of tbe Judge for setting aside tbe verdict, if insufficient, is immaterial, so that there appears a good and valid reason in tbe record for sustaining bis ruling, and we are all of tbe opinion that such a reason does exist. There was evidence that Jones was an agent of limited authority, and there was also evidence, we think, that a fraud was practiced upon tbe defendant by plaintiff’s agent in bis dealings with Jones, and yet tbe Court instructed tbe jury that, if they found Jones made tbe order for tbe metal on 19 September, 1905, they should answer tbe first issue “Yes,” and that tbe evidence in tbe case was not sufficient to sustain an affirmative finding upon tbe second issue, and they should answer it. “No.” Tbe defendant’s counsel bad asked instructions as to. both of these issues. Their third prayer, as to tbe authority of Jones, was-not very explicit, it is true, as it referred more to tbe fact that Jones bad informed Jacob of bis restricted authority as agent of-tbe defendant than it did to the nature or extent of the authority itself; but if a liberal construction is given to it, we find it sufficient to embrace that feature of tbe case. It should have more definitely required tbe jury to find, first, what was tbe nature of Jones’ authority, whether limited or unlimited, and, if they found that it was limited, whether, in tbe second place, tbe plaintiff, through Jacobs, was notified of tbe fact. If Jones bad only tbe restricted authority, as testified by him, be could not, of course, exceed tbe limit of *297bis power when be made tbe contract. Brittain v. Westhall, 135 N. C., 492; ib., 137 N. C., 30; Bank v. Hay, 143 N. C., 326.
Whether tbe evidence introduced to establish tbe fraud was sufficient for that purpose was a question for tbe jury, and tbe Judge could express no opinion as to its weight. Revisal, sec. 535; Withers v. Lane, 144 N. C., 184; State v. Simmons, 143 N. C., 613. Whether there is any evidence upon which tbe jury could conclude as to the truth of tbe matter submitted to them for inquiry and decision, we have often said, is a question of law to be decided by tbe Judge (Byrd v. Express Co., 139 N. C., 273; Campbell v. Everhardt, 139 N. C., 503; Lewis v. Steamship Co., 132 N. C., 904) ; but, there being-some evidence-which is more than conjectural or speculative to establish the fact in issue, and which the law adjudges to be fit for the consideration of a jury, whether it sufficiently proves the fact or not is a question for the jury. The cases already cited also establish this proposition, which is but the counterpart of the other. The able and learned Judge who presided at the trial may have intended by the expression which he used to say that there was no evidence of the fraud, but, even if this was his purpose, there was error, as, in the view we take of the evidence, without setting it out at length, we think there was at least some which the jury should have been permitted to pass upon.
We also are of the opinion that the Judge erred in not reducing his charge to writing, as he was asked to do by the defendant’s counsel. The request was made in apt time. It is impossible to distinguish this case from Craddock v. Barnes. 142 N. C., 89. The principle established in that case is clearly applicable to this one. The mere intervention of an argument by counsel, at the Judge’s invitation, upon the question as to whether there was any evidence of a particular fact, when the jury had retired from the court room for the recess, and as preliminary to the discussion before them after *298tlie recess, should not have the effect to except this case from the principle of that one. The argument to the jury had not commenced when the request to the Court was made. We do not see anything in the record to indicate that the Judge did not have adequate time to write out his charge after he was asked to do so. Sawyer v. Lumber Co., 142 N. C., 162, would also seem to be direct authority against the ruling 'of the Court that the request had come too late. In that case the present Chief Justice said: “The defendant, at the close of the evidence, and before the argument began, requested the Court to put its charge in writing.” This means, of course, “at the close of the evidence, and before the argument (to the- jury) began.” We then held that the Judge committed an error when he failed to comply with-the request.
There must be a new trial, for the errors indicated in the plaintiff’s appeal.
New Trial.
DEFENDANT’S APEEAL IN SAME CASE.
These two appeals have been so prepared for this Court that it has been found impossible to reach the true merits of the questions intended to be presented without considering them together and as if they had been consolidated into one. We doubt if it was necessary for the defendant to have formally taken an appeal, as the exceptions noted in its case might well have been considered in the plaintiff’s appeal. It is stated by the Judge, in the plaintiff’s appeal, the case having been settled and signed by him, that all the evidence ■was sent up at the request of the appellant, whereas it appears by reference to the defendant’s appeal that all the evidence,, by some accidental omission, of course, ivas not, in fact, stated in the plaintiff’s appeal, for there is much evidence to be found in the case as stated in the defendant’s appeal which is not in the case as stated in the plaintiff’s appeal. It ivas intended, no doubt, and we think the cases clearly show it *299to be so, that all tbe evidence should have been set out in the plaintiff’s appeal. We have for this reason, and for others of equal or greater weight, found it absolutely necessary, for the purpose of doing justice by intelligently considering this case, to unite the two cases, as it were, into one appeal, and in this way we have been enabled to reach what we consider to be the right conclusion upon the whole matter. In view of the confusion in the record, as above indicated, we think the costs of this Court, except the costs of printing the records and briefs, should be divided between the parties. The plaintiff is adjudged.to pay one-half thereof, and the defendant the other half. The plaintiff will pay the costs of printing the record and briefs in its appeal, and the 'defendant the cost of printing the record and briefs in its appeal. Where a new trial is granted, the awarding of costs is discretionary. Revisal, see. 1279; Williams v. Hughes, 139 N. C., 18.
Regular practice and procedure would require us, under ordinary circumstances, to dismiss the defendant’s appeal, as it was taken only to save its rights in case our opinion should have been adverse to it in the plaintiff’s appeal, and, as we have decided the other way, a consideration of the defendant’s appeal separately becomes unnecessary. We conclude, though, that an apparent departure from the strict practice in such cases is justified, under the peculiar circumstances, and the real intention of the parties will be effectuated by considering the two cases as we have done, and dividing the costs. If this course were not taken, and the plaintiff’s position is the correct one, we- would, perhaps, have to affirm in its appeal and award a new trial in the defendant’s appeal, and thereby produce confusion and incongruity in the result. It would be vain and useless to issue a certiorari or any other process to perfect the case, when all the facts are before us in the two cases.
Sometimes it may be proper and legitimate practice for a party in whose favor a case has been decided to note his excep*300tions and preserve them by an appeal in case the ruling of the court is reversed here, but the instances where this practice can be justified are exceedingly rare, and it is not to be encouraged. We do not decide that the defendant’s appeal was improvidently taken in this case, though we are inclined to think the defendant’s exceptions could haA’e been presented in the plaintiff’s appeal. -Let the tAVO cases be considered as one, and the costs he divided and paid as herein directed.
New Trial, as ordered in plaintiff’s appeal.