
    THE NECESSARY INDICIA OF AUTHORITY UPON THE PART OF AN AGENT.
    The Chicago Cottage Organ Company v. Emma B. Rishforth.
    Decided, February, 1903.
    
      Commodities Treated as "Money" — Agency—Scope of, a Question of Fact — Estoppel of Principal from Disputing. '
    
    
      1. "Where there has been an exchange of commodities at a liquidated value, and the balance due is stated in money figures, the commodity exchanged by the one against whom the balance stands may be treated as “money,” within the meaning of the act providing that where property is conditionally sold, the vendor may not retake' it without repaying a certain part of the price paid.
    2. To establish agency, one or the other of two things must be proven —either that the agency actually existed and the agent had the authority he assumed to exercise, or that the principal is estopped from disputing it.
    Jelke, J.; Swing, J., concurs.
   We incline to file opinion that where there has been an exchange of commodities, like a piano on the one hand, and commissions and board on the other, not by way of barter, but on the basis of an agreed liquidated value for each respectively, so that the aeeunting and balance is stated by the parties in money figures, the commission and board may be treated as money, within the meaning of the word “money” as used in R. S., 4155-3 and its amendment in 95 O. L., 60.

We think the case of Buggy Co. v. Hord, 65 Mo. App., 43, rather supports this view, and not' the contention of counsel for the plaintiff in error. In that case the vendee claimed credit for some dishonored acceptances of his own, still in the hands of the vendor, and the court said that as between vendor and vendee they could not be treated as money; “this equity is available to the vendee only when by the omission of such entry he is in danger of suffering substantial injury.”

We do not think it is safe to follow analogies taken from the law of descent and distribution, because the body of the law on that' subject has an origin, development and character of its own.

We do not, however, decide this proposition generally, because it is not necessary to a review of this case. We are of the opinion that to the extent that, in their subsequent compromise and settlement of December 8, 1898, the parties reduced their conflicting claims to a balance of 'an account, stated in money denomination, it must, for a determination of their rights under the law, be 'treated as “money.”

This brings us, naturally, to the consideration of the other alleged errors.

If the parties are to be bound by what they did on December 8, 1898, so that Mrs. Rishforth can claim credit as for money paid, the Chicago Cottage Organ Company is entitled to hold her to the express contract as then entered into by them, that is, a contract of mortgage, and not conditional sale. But she s'ays, being alive, from experience, to the distinction between chattel mortgages and conditional sales, she secured certain parol modifications of the written contract from agents Price and Yan Fossen. These oral changes are in direct contradiction to the writing. If it was within the scope of Price and Yan Fossen’s agency to so modify by parol the written contract, of course their modifications hind the company. The scope of their agency is 'a question of fact to be found by the jury, under proper instructions from the court.

On this subject the court below charged as follows:

“There has been some controversy about the authority of the agents of the Chicago Cottage Organ Co. The agents of the Chicago Cottage Organ Co. would bind such company for any act or promise or contract made by such agent with the defendant which was either within the actual scope of his authority, or such authority as the defendant, Mrs. Rishforth, acting as a prudent person, under the circumstances would reasonably believe such agent to possess. The written contracts or papers between the company and defendant 'are not conclusive upon such agent’s authority, but they, together with all the other facts and circumstances, should be taken into consideration by the jury for the purpose of determining what was the 'actual scope of the authority of such agent; or with the notice, if any, that she received thereby, would she, acting as a prudent person, reasonably believe such agent to possess such authority under t'he circumstances.”

This charge is essentially erroneous. It must never be forgotten that there can be no such thing as an agent without a principal.

The facts and circumstances which justify an ordinarily prudent person in believing in the existence of a sufficient agency must be facts and circumstances for which the principal is responsible. The indicia of authority must be at least by the permission of the principal.

It is true that, on account of the remoteness of the principal and the great show of business surrounding the agent, much has been read into the authority of agents, for the protection of the innocent public, and very slender evidence has at times been held sufficient to trace home authority; but the fundamental principle must not and can not be lost sight of. The umbilical cord must be there.

John Ledyard Lincoln, for plaintiff in error.

John W. Wolfe, contra.

On account of a tendency to obscure this principle in some cases, courts and writers of high authority have recently been emphasizing it.

The principle is correctly stated-in an article by John S. Ewart, in the Harvard Law Review for January, Vol. 16, p. 187:

“Where a principal has by his voluntary act placed1 an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act and therefore deals with the agent, the principal is estopped as against such third person from denying the agent’s work.
“The important question is: What did such third person believe and have a right to believe as to the agent, from the acts of the principal?
“Johnson v. Milwaukee (1895), 46 Neb., 480; 64 N. W. Rep., 1100; approved in Holt v. Schneider (1899), 77 N. W. Rep., 1086.
“Heath v. Stoddart (1898), 91 Me., 499; 40 Atl. Rep., 547.
‘ As Lord Cranwoxtli says: 'You prove one thing or the other— you must show that the agency did exist and that the agent had the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it.’ Pole v. Leask (1863), 33 L. J., Ch. 162.”

Its last and highest expression is by the United States Supreme Court, in the case of Northern Assurance Co. v. Grand View Building Association, decision rendered January 6, 1902, 183 U. S., 308.

The other errors complained of as to the admission of testimony offered by the agents are determined by the same principle.

Judgment reversed.  