after stating the case as above: We will consider only one question. It appears that, after the agreement between Woodward and defendant was made, as alleged by the latter, and conceding, for the sake of argument, that it was made, the company notified defendant, through J. G. McCormick, that Woodward had no authority to make the agreement, and this was done before the defendant had ordered any of the goods. It was an important and material fact in the case if the jury found from the evidence that this notice was given. We said in Wynn v. Grant, 166 N. C., 47: “The principal is held to be liable upon a contract duly made by the agent with a third person: (1) when the agent acts within the scope of his actual authority; (2) when the contract, although unauthorized, has been ratified; (3) when the agent acts within the scope of his apparent authority, unless the third person lias notice that the agent is exceeding his authority. The term ‘apparent *387authority’ includes the power to do whatever is necessary to he done in order to carry into effect the principal power conferred upon the agent to transact the business or to effect the commission which has been intrusted to him.” Brimmer v. Brimmer, 174 N. C., 435, 439.
Under this doctrine, even though Woodward did make the agreement with the defendant about the log road freight charges, it is contended that if, before the defendant acted thereon, he received notice of the agent’s lack of authority, the agreement would have no effect upon .the principal or make him liable for the unauthorized act of his agent, because up to the time of the notice that he had exceeded his authority, the defendant had done nothing, under the Woodward agreement, which would injure or prejudice him, if the authority of the agent is denied, or the agreement is held to be invalid, because of the want of authority in Woodward to make it. But we do not rest our decision on that ground, or decide that question. The judge’s eharge confined the jury to the single inquiry, whether or not the agreement was made, and the finding upon that question was held to be determinative of the defendant’s liability. In thus instructing the jury, we think the court narrowed the investigation too much. There was another question involved, which should have been considered, and that is whether the defendant, after being notified by Mr. McCormick, if he was so notified, of Woodward’s lack of authority to make the agreement and bind the company, consented that he should, the Acme Company, should, forward the fertilizers under the written contract, and that the defendant would pay the log road freight. There was ample evidence of this understanding introduced by the plaintiff and supplemented by the defendant’s acts and conduct. Mr. McCormick testified that the notice of Woodward’s assumption of authority not conferred on him' by the company, and of its unwillingness to pay the freight, was given to defendant, and after this was done, the defendant sent in orders for the fertilizers, and also signed the notes for the amount due for the same without any allowance or credit for the freight charges paid by him. We do not mean that these are the admitted facts, because the evidence in regard to them was conflicting, the defendant denying the notice and explaining his signing of the notes by stating that they were to be credited with the amount of the freight charges. But this conflict of evidence required the matter to be submitted to the jury to find the facts in regard to it. If the jury should find that defendant had agreed to order under the old contract, and not claim credit for the freight charges, the liability of defendant would not depend solely upon the making of the contract with Woodward. The charge therefore was erroneous in that respect, as it excluded from consideration the other important evidence in the ease bearing upon the essential inquiry whether defendant had waived, or surren*388dered, all rights under tbe Woodward agreement, if be bad any, and agreed to go hack to tbe original contract and pay tbe freight charges. Tbe two propositions were so closely connected and related as to be inseparable. Tbe fault in tbe instruction was in making tbe case turn upon one fact, and ignoring all other matter just as essential to a decision. Tbe judge substantially charged tbe jury that, if tbe agreement with Woodward was made, tbe verdict should be for tbe defendant, and if not made, then for tbe plaintiff, thereby eliminating other evidence’ having an important bearing upon tbe question of liability for tbe log road freight charges.
In S. v. Merrick, 171 N. C., at 795, Justice Hoke says: “Tbe authorities are at one in bolding that, both in criminal and civil causes, a judge in bis charge to the jury should present every substantial and essential feature of the case embraced within the issue and arising on the evidence, and this without any special prayer for instructions to that effect. Charged with the duty of seeing that impartial right is administered, it is a requirement naturally incident to the great office be bolds, and made imperative with us by statute law. Bev., 535: ‘He shall state in a plain and correct manner the evidence in the case, and explain the law arising thereon,’ and a failure to do so, when properly presented, shall be held for error. When a judge has done this, charged generally on the essential features of the case, if a litigant" desires that some subordinate feature of the cause or some particular phase of the testimony shall be more fully explained, be should call the attention of the court to it by prayers for instructions or other proper procedure; but, as stated, on the substantive features of the case arising qn the evidence, the judge is required to give a correct charge concerning it.” Citing Simmons v. Davenport, 140 N. C., 407; S. v. Foster, 130 N. C., 666, and other authorities.
It was held in Simmons v. Davenport, supra: “Tbe rule which requires that a complaining party should ask for specific instructions if be desires a case to be presented to the jury by the court in any particular view does not, of course, dispense with the requirement of the statute that the judge shall state in a plain and correct manner the material portions of the evidence given in the case and explain the law arising thereon. Rev., 535.” To the same effect are Carleton v. State, 43 Neb., 373, and State v. Barham, 82 Mo., 67, cited and quoted from in the Merrick case.
It was, therefore, the duty of the court to have broadened the charge so as to embrace the material portions of the evidence, with proper explanation of the law arising thereom This was not done, and constituted error, which entitles the plaintiff to another jury.
New trial.