At the trial of this action there was evidence tending to show that J. B. Kittrell, of Greenville, N. 0., was during the year 1928 and is now the agent of the Bowersoek Mills and Power Company in and for the State of North Carolina, and that as such agent he was authorized to make and enter into the contract with the Louisburg Grocery Company on behalf of the Bowersoek Mills and Power Company, as alleged in the complaint in the action entitled “Louisburg Grocery Company v. Bowersoek Mills and Power Company.”
As a witness for the Bowersoek Mills and Power Company, J. B. Kittrell testified as follows:
“I live in Greenville, Pitt County, North Carolina. In 1928 I represented the Bowersoek Mills and Power Company as its flour salesman. My territory was and is now the State of North Carolina. I was authorized to contact prospective customers, on a specific contract on which I was paid commissions. I had the whole State of North Carolina, and was the sole representative of the company in this State. I reported all contracts to the company for its 'approval. "When we entered into a contract with a prospective customer we came to a common understanding as to a division of territory.”
There was also evidence tending to show that some time during the year 1928, or 1929, J. B. Kittrell, as agent of the Bowersoek Mills and Power Company, made and entered into the contract with the Louisburg Grocery Company, as alleged in the complaint, and that the Bowersoek Mills and Power Company thereafter ratified the said contract.
*344McM. Ferguson, as a witness for the Louisburg Grocery Company, testified as follows:
“From 1925 to 1933 I was the president of the Lo-uisburg Grocery Company. On 8 December, 1925, 1 received a letter from the Bowersock Mills and Power Company advising me that the said company had sent me a sample of the flour which it was manufacturing, and soliciting business with me. In this letter I was advised that Messrs. Kittrell and Parrish were the company’s brokers, and was requested to> favor them with a trial order for a carload of flour.
“I made the contract on which we are suing with Mr. Kittrell during 1928 or 1929. He agreed to give me exclusive right to sell flour manufactured by the company in Franklin County, and also in the following towns: Oxford, Henderson, 'Warrenton, Nashville, Spring Hope, Zebu-Ion, and Wake Forest. It was agreed that my contract should cover all brands of flour manufactured by the company, and that the company should not sell such flour to jobbers who sold flour in my territory. In consequence of the agreement, I agreed to take the agency of the Bower-sock Mills and Power Company in the territory agreed upon, and to give up the contract that I had with another mill. I knew I would have a hard time to establish the trade in this part of the country. I went to work and advertised the flour manufactured by the company at my own expense. I paid out for newspaper advertising during the years 1928, 1929, and 1930, $548.75.”
In view of this evidence it was error for the court to instruct the jury that if they believed all the evidence they should answer the first issue “No,” and in that event should not consider the second and third issues.
For the error in such instruction the appellants are entitled to a new trial. It is so ordered.
New trial.