The opinion
Denied November 27, 1917.
On Petition for Rehearing.
( 168 Pac. 972 .)
On petition for rehearing. Denied.
Mr. A. S. Dresser, Mr. H. A. Webster and Mr. Walter A. Dimiek, for the petition.
Mr. Maurice W. Seitz, contra.
In Banc.
Mr. Justice Harris
delivered the opinio» of the court.
The plaintiffs earnestly petition for a rehearing. The petition is supported by a reargument of the questions which were presented at the hearing, discussed in the printed briefs and decided in the original opinion. "We do not deem it necessary again to review all the questions reargued in the petition. The original opinion was not even written until the entire record had been carefully read and examined by more than one member of the court. The petition does however contain an additional point not previously suggested by the plaintiffs.
11, 12. The complaint charges that the alleged false representations were made by the Gerlinger Motor Car Company speaking through its agents E. E. Gerlinger, F. P. Coulter and C. C. Hargroves. In the original opinion we held that there was sufficient evidence to go *425 to the jury upon the question of whether false representations were made by the corporation through its representatives E. E. Gerlinger and F. P. Coulter, but that there was no competent evidence to prove that Hargroves acted as an agent for the Gerlinger Motor Car Company; and that, therefore, the trial court erred in asking the jury to decide whether false representations were made by the company through Hargroves as its agent. The charge given by the trial judge permitted the jury to find for the plaintiffs if the jury found that the company made false representations through Gerlinger and Coulter or through Hargroves. The question of whether the company made false statements through Gerlinger and Coulter was properly submitted to the jury; but, the question of whether such statements were made by the company through Hargroves was improperly submitted to the jury because there was no evidence, except clearly incompetent evidence, concerning the allegation that Hargroves was an agent of the corporation. If it could be ascertained from the record that the jury based its verdict solely upon a finding that the company spoke falsely through its agents Gerlinger and Coulter or either of them, and not through Hargroves, then it could be argued with reason that a lack of competent evidence concerning the alleged agency of Hargroves should not work a reversal. But there is no way of knowing whether the jury found the company liable on account of representations made by Hargroves or on account of statements made by Gerlinger and Coulter; and consequently a reversal of the judgment is the only just and practicable alternative. There are sharp contradictions in the testimony and a decision on a mere paper record would necessarily be without that intangible and not recordable but nevertheless helpful *426 form of evidence which so often manifests itself in the appearance of a witness and the manner in which he testifies.
13. It is strenuously insisted that there was enough competent evidence to carry the question of Hargroves ’ agency to the jury. Verdicts must be supported by evidence; and they cannot stand when founded only upon supposition, speculation and conjecture. As we read the record, the most that can be said for the verdict, if the incompetent evidence is first eliminated and if it is then assumed that the verdict rests upon a finding that Hargroves was an agent of the company, is that it was founded upon speculation and conjecture : Spain v. Oregon-Washington R. & N. Co., 78 Or. 355, 369 ( 153 Pac. 470 ); Parmelee v. Chicago M. & St. P. Ry. Co., 92 Wash. 185 ( 158 Pac. 977 ).
It was error to permit Bridenstiue to relate the statement made to him by Tellefson; the letter addressed to Davis and the one- written by him were incompetent ; and yet if these were the only errors appearing in the record the judgment might be sustained. But there were other errors committed during the trial and the other errors, as pointed out in the original opinion, were prejudicial to the appellants. Our original opinion is adhered to and the petition for a rehearing is denied. Reversed. Rehearing Denied.