
    W. S. McCORNICK, Doing Business as McCORNICK & COMPANY, Appellants, v. QUEEN OF SHEBA GOLD MINING AND MILLING COMPANY, Respondent.
    Agewct — How Proved — Witness May Hot State Opinion or Conclusion — Evidence in Support oe Agency — Undisputed Agency, Question oe Law — Under Conelicting Evidence — Mixed Question oe Law and Eact — Eor Jury Under Instructions' — Particular Evidence oe Agency — Wiiat Admissible — -Instructions—Entire Charge Eairly Stating Law — Charge Sueeicient.
    1. Agency: how proved: witness may not state opinion or conclusion. Where agency is the question directly involved in a ease, the reputed agent as witness may not give his opinion or state his conclusion as to such agency, but may state the facts and circumstances concerning the various transactions between him and the alleged principals, leaving the court and jury to determine, under the facts disclosed, whether or not he was such agent.
    2. Evidence: in support oe agency: undisputed: agency, question OE LAW: UNDER CONELICTING EVIDENCE: MIXED QUESTION OE LAW and eact: eor jury under instructions. Where evidence in support of a particular agency, is undisputed, the question of whether or not the agency exists is one of law for the court, but where such evidence is disputed, the existence of the agency becomes a mixed question of law and fact and is one for the jury to determine under proper instructions from the court.
    3. Particular evidence oe agency: what admissible. H. was oper-ing the mine of defendant, for an English company having a lease and bond on certain property and in possession during the life of the bond, and while so acting created an overdraft in the name of the company. The question being whether the credit was extended to the lessors "or lessee, letters, reports or statements, sent during the lease by H. to his foreign corporation, and the escrow papers including the contract of sale and lease were competent evidence, admissible, and for the jury to say how weighty, in determination of the question of agency.
    
      4. INSTRUCTIONS: ENTIRE CHARGE EAIBEY STATING LAW: CHARGE SUEEI-oxent. Wliere the entire charge of the trial court fairly states the law applicable to the case, the judgment will not be reversed because a portion of the charge omits one element which might have been stated to the jury.
    Decided December 13, 1900.
    Appeal from tbe Third District Court, Salt Lake County.— Hon. A. N. Oherry, Judge.
    Action by 'plaintiff to recover of defendant a certain amount alleged to be due him on account of an overdraft of defendant- at his bank. From a judgment for defendant plaintiff appealed.
    AmriBMKD.
    
      Messrs. Pierce, Oriichlow <& Barrette for appellant.
    The appointment of an agent and his authority may be proved by the agent’s testimony.
    The testimony of an agent on the question of his agency, is as competent as that of any other witness. R. S. Utah, secs. 3412, 3413.
    The court admitted in evidence a large number of letters and statements, which Geo. D. Haven sent to the English company and associates.' Mr. MeCornick knew absolutely nothing of these exhibits. It is not claimed that he had any knowledge of them. The contents of these letters was very prejudicial to the plaintiff, and had a tendency to draw the mind of the jury from the issues in the case. These letters were all written long after the account was opened. They are immaterial and hearsay under the rule laid down in the ease of Jensen v. MeCor-nick, 58 Pac. 834.
    
      By an examination of tbe bond as introduced in evidence it will be seen that it was an agreement whereby the witness, George D. Haven, binds himself to deliver to M. K. Rodgers a deed to all the defendant company’s property, upon the payment of certain sums therein mentioned. We think this exhibit was absolutely immaterial and hearsay, so far as McOor-nick was concerned. We can not possibly see what bearing it has upon the issues in this case. It was certainly confusing to the jury, and tended to draw their minds from the vital issues in the case. Jensen v. MeCornick, 58 Pac. 834.
    
      Messrs. Marshall, Boyle & Hempstead for respondent.
    The reports were admissible on cross-examination, because they were statements in writing by the witness at another time contradicting his testimony on direct examination. See Green-leaf on Evidence (15 Ed.), sec. 462.
    The authorities hold without dissent that a depositary, such as MeCornick was, is the agent of both parties, to the agreement, and when he assumes the trust he is bound to ascertain the extent of his own agency. See Shirley v. Ayres, 14 Ohio 308; Cannon v. Handley, 72 Cal. 140. •
    In conclusion, we rely upon the salutary legal principle repeatedly enunciated by this court, that the Supreme Court will not set aside a verdict when- the evidence is conflicting, unless such verdict be so manifestly against the weight of the evidence as to show that the jury acted from passion or prejudice. Mader v. Taylor, Romney & Armstrong, 15 Utah 161.
   BARTCH, C. J.

The plaintiff, who is a banker, brought this action to recover $2,673.48 and interest, alleged to be due him from the defendant because of an overdraft at his bank. At the trial a verdict was returned and judgment entered against him. This appeal is from the judgment.

It appears from tbe evidence that tbe defendant was a mining corporation, and owned a group of mining claims in western Utab; that one George D. Haven, a mining man of experience and means, in tbe early part of 1896, went to England for tbe purpose of interesting English capitalists in mining property situate in this State; that before bis departure, Haven, wbo beld a few shares of stock and was a director in tbe defendant company, was authorized, by special power of attorney, to sell tbe corporate property; that be did not dispose of tbe property, under these powers, but, while in England, succeeded in interesting some friends in tbe enterprise. These Englishmen and Haven organized, it appears, tbe Clifton Utab Mining Company (Limited), at London, England, and Haven became one-ninth owner therein; that upon bis return from England, tbe English, and defendant companies entered into an agreement, bond and lease, as to tbe defendant’s mining.property, under tbe terms of which, among other things,- tbe possession of tbe property was turned over to tbe English company, and tbe company, within two years from April 14, 1896, was to spend 1,500 pounds sterling in developing tbe property, building mills, -etc., and was to have tbe right, at any time within the two years to purchase the property at a certain price fixed, or in tbe event tbe purchasing company did not exercise its option to purchase, then it was to have a certain number of shares of tbe defendant company’s stock in return for tbe expenditure of tbe 1,500 pounds for development work; and that tbe documents relating to this lease and option to purchase were deposited in escrow with tbe banking bouse of tbe plaintiff, with an indorsement on tbe envelope, as follows:

“Tbe within deed of tbe Queen of Sheba G. M. & M. Co-., a corporation, to Alfred Stebbing, and 25,000 shares of tbe eapital stock of said company, indorsed in blank by George D. Haven, are hereby placed in the bands of McCorniek & Co., bankers, of Salt Lake City, Utah, and they are instructed to deliver said deed and shares of stock to said Stebbing, or order, upon a compliance with the terms of a certain contract this day entered into by and between said company and said Steb-bing, for the purchase of the property described in said deed and contract, and a failure to comply with the terms of said contract upon demand of said company said deed shall be det-livered by McCorniek & Go. to it.
“The QueeN oe Sheba G. M. & M. Go.,
“T. 0. Rooklidge/’ President.

Upon the mining property being turned over to the purchasing company, Haven became the manager thereof, and that company from time to time forwarded to him the money for development work, required by the terms of the contract, and Haven thenceforth made his reports concerning the enterprise and development and expenditures to the English company. The defendant ceased doing business during the term of the lease. After assuming the duties 'of manager, and money coming into his hands from the English company, he opened an account with the plaintiff’s bank in the name of the “Queen of Sheba Mining Company,” and the account was so continued until it finally resulted in the overdraft, for which the plaintiff is seeking to hold the defendant company responsible. Haven also deposited to his individual account, on December 23, 1897, with McCorniek & Company, $16,000, which it appears, is the same date on which the overdraft was commenced to be made. The evidence further shows that the defendant company never kept an account with the plaintiff’s bank; nor is there anything to show that the defendant company authorized by resolution or, otherwise instructed Haven to open an account with that bank, or ratified, bis action in tbe premises.

Under tbe evidence, tbe principal question appears to be whether Haven was, during tbe term of tbe lease, acting as manager or agent of tbe lessor, or of tbe lessee. At tbe trial, sworn as a witness in behalf of plaintiff, be was asked: “Were you manager of this English company (tbe Clifton Utah Company) or for any of tbe gentlemen referred to ?” To this question tbe defendant interposed an objection as being improper to establish agency by such evidence, and tbe court sustained tbe objection, stating that a man cannot prove bis agency by bis- own statements. Tbe action of tbe court in tbe premises has been assigned as error, and it is now insisted that it was prejudicial to tbe rights of tbe appellant. We think not. Whether or not tbe court assigned a correct reason for sustaining tbe objection, tbe question, under tbe circumstances of tbe case,, was objectionable. It was in effect tbe same as asking tbe witness whether be was the agent of tbe English company, which, as we have seen, was one of tbe main issues in tbe case to be determined by tbe court and jury, from all tbe facts and circumstances shown by the evidence. Whether be was an agent was a mixed question of law and fact, and not one upon which tbe witness could properly give bis opinion. Tbe general rule is that witnesses must testify to facts and not to conclusions. It was competent for tbe witness to state all tbe facts, and show all tbe circumstances, relating to or concerning the various transactions which be had with either or both companies prior and leading up to, and during tbe term of tbe lease, and at tbe time when tbe overdraft sued for was contracted, and then from such facts and circumstances, and the other evidence, it was tbe province of tbe court and jury to determine whether, in such transactions and at such time, be was tbe agent of or was acting for tbe English or the defendant company. Where tbe question of agency is, as in this case, made a principal issue at tbe trial of tbe cause, it is not competent for a witness to express an opinion upon sucb question.

Tbe authorities wbicb tbe appellant cited are not in point here. They merely declare tbe general principles that an agent is a competent witness to prove tbe nature and extent of bis authority, and to testify to facts and circumstances tending to establish tbe relationship of principal and agent. Mecbem on Agency, sec. 102; 1 Am. and Eng. Ency. of Law (2 Ed.), 969.

Where, in sucb case, tbe evidence in support of tbe agency for a particular concern, is undisputed, tbe question whether or not tbe agency exists is one of law for tbe court, but where, as in the ease at bar, sucb evidence is disputed, tbe existence of tbe agency becomes a mixed question of law and fact, and is one for the jury to determine, under proper instructions from tbe court. Mecbem on Agency, see. 106; 1 Am. and Eng. Ency. of Law (2 Ed.), 967.

Nor, under the facts and circumstances, do we think that tbe court erred in admitting in evidence tbe letters, reports or statements wbicb Haven, as manager, sent tbe English company, showing tbe progress of bis work at tbe mines in question, and bis receipts and expenditures as manager. Sucb documents prepared and sent during tbe term of tbe lease were proper for tbe jury to consider in determining whether or not Haven was acting for tbe English company, when be overdrew tbe account at tbe bank. Nor did the court err, as claimed by tbe appellant, in admitting in evidence the bond and lease and other papers, which had been placed in escrow in tbe appellant’s bank. The jury were required to determine who was operating tbe mine during the time of tbe overdraft and as to whether or not the appellant bad extended credit to tbe lessor or tbe lessee of the property. Tbe witness Haven bad testified that all tbe money overdrawn was expended in developing tbe mine. ■ Tbe escrow papers included tbe contract between tbe lessor and lessee, and constituted evidence showing tbat tbe English company bad the right of possession of tbe property; tbat it was its duty to develop it and furnish tbe funds therefor; and that, tbe documents having been deposited with tbe banking house of tbe appellant, be was chargeable with notice of their contents, tbe instructions on tbe envelope containing tbe papers, as we have seen, referring to them. Tbe contents of tbe envelope, were therefore proper evidence for tbe consideration of tbe court and jury.

Tbe appellant also complains of tbe charge of the court, because, as is claimed, it omits tbe element tbat tbe failure of officers, within a reasonable time, to disaffirm tbe acts of tbe alleged agent of tbe company, when be acts with tbe knowledge of tbe officers, often works an estoppel on tbe company, but, upon examining tbe entire charge, tire law, applicable to tbe facts disclosed by the evidence, appears to be fairly stated, and, hence, tbe objection here urged can be of no avail.

There are other questions presented, but finding no reversible error in tbe record, we do not regard further discussion necessary. We are of tbe opinion tbat the great preponderance of tbe evidence is unfavorable to tbe appellant, and shows no right in him to recover against the defendant company in this case.

The judgment is affirmed with costs.

Miner and Baskin, JJ., concur.  