St. Louis Gunning Advertising Co. v. Wanamaker & Brown

90 S.W. 737, 115 Mo. App. 270, 1905 Mo. App. LEXIS 411

Opinion

GOODE, J.

(after, stating the facts). — 1. The ground for a verdict in favor of the plaintiff allowed by the instructions, was that defendant had ratified the contract made by Lurie in its name. The first instruction treated the defendant’s failure to disclaim liability within a reasonable time after receiving plaintiff’s letter of November 20th, as in itself a ratification. Every fact hypothesized in that instruction was undisputed; hence, the charge was equivalent to directing a verdict for the plaintiff. We think the instruction went too far, in view of the fact that plaintiff had already performed half the contract before it wrote the letter and could not have been induced by defendant’s silence to render that much of the agreed service, and of the further fact that defendant’s silence did not induce the plaintiff to refrain from proceeding against Lurie personally while it might have collected the rent from him. The silence of a principal, after receiving notice that his agent has assumed to hind him by an unauthorized act, may be a fact to be weighed on the issue of whether the principal ratified the act, or may raise a presumption that he ratified it, according to circumstances. If the controversy between the agent and the third party is completed before the principal is notified, so that no detriment can result to the third party from the silence of the principal, his failure to repudiate the act is evidence to be considered with other facts in the case, that he adopted it as his own, or ratified it. [Union Gold Mining Co. v. Bank, 2 Colo. 248, 262; Breed v. Bank, 4 Colo. 481, 507; Culver v. Ashley, 1 Am. Lead Cas. (5 Ed.), note p. 719; Horton v. Townes, 6 Leigh (Va.) 47, 60; Bryant v. Moore, 26 Maine 84, 87; Bates’ Excrs. v. Bests’ Excrs., 13 B. Monroe, 215, 218; Corser v. Pauk, 41 U. S. 24, 31; Philadelphia, etc., Ry. v. Cowell, 28 Pa. St. 329.] And it will be conclusive evidence of ratification if not explicable on any other theory. [Bank of Ky. v. Schuykill Bank, 1 Parson’s Eq. Cas. 180, 267; Hart v. Dixon, 5 Lea (Tenn.) 336, 339.] But if the transaction is still in progress, and the silence of the principal, after notice, induces the party dealing with the agent to pursue a course which would be detrimental to him if the principal was not held bound, a ratification of the unauthorized act^will be presumed. This result will obtain when the person dealt with is induced to alter in any way his position to his detriment; as by parting with money or property on the assumption that the agent’s act was valid; or omitting to take steps against the agent; or otherwise to improve his position. [Union Mining Co. v. Bank; Breed v. Bank, supra.] The result will obtain, too, when the principal accepts the benefit of what the agent did. [McLachlin v. Barker, 64 Mo. App. 511.] The cases abound in such remarks as that a principal must disavow the conduct of an agent done in excess of authority, in a reasonable time after getting notice of it, on pain of being deemed to have assented to the conduct; and some decisions hold that the disavowal must be immediate. But the prevalent doctrine is that it must occur in a reasonable time. These remarks are to be construed with reference to the facts before the court; and we think the true doctrine is that a conclusive pre- ' sumption of acquiescence is raised from a principal’s silence,- only when otherwise loss would fall on an innocent party. The contrary doctrine would be arbitrary and irrational; and such rules of law should be avoided. An ■ examination of numerous cases has shown that in every instance wherein the presumption of ratification Avas raised because of a principal’s silence, some change in the position of the parties concerned occurred subsequent to notice to the principal, Avhich would have resulted in injustice to the party dealt with by the agent if the principal had been excused on the score of want of authority in the agent. We cite illustrativé decisions .on the point. [Peck v. Ritchey, 66 Mo. 114; Teasdale v. McPike, 25 Mo. App. 341; Johnston v. Berry, 3 Ill. App. 256; Hanks v. Drake, 49 Barb. 186; Hawkins v. Lange, 22 Minn. 557; Farwell v. Howard, 26 Iowa 381; Cooper v. Schwartz, 40 Wis. 54; Pittsburgh, etc., R. R. v. Wooley, 12 Bush (Ky.) 451; Marshall v. Williams, 2 Biss. 255; Woodward v. Luydon, 11 Ohio 360; Matthews v. Fuller, 123 Mass. 446; Foster v. Rockwell, 104 Mass. 167; Ruffner v. Hewitt, 7 W. Va. 585.]

The real ground on which the principal is held liable under such circumstances is that of estoppel; though it is often said that the principal ratified Avhat was done by his agent by remaining silent. [Teasdale v. McPike, 25 Mo. App. 341; Hoppe v. Saylor, 53 Mo. App. 4.] In its genuine sense, ratification depends on intention. It is the voluntary assumption, on full information, of an unauthorized act or agreement by the party in whose behalf it was done or made. The intention to ratify may be manifested by express words or by conduct. Either may establish that the principal elected to adopt the act or agreement as his own; and the election once made with knowledge of the facts, becomes irrevocable. Besides a true ratification intentionally made, the law recognizes a constructive one where none was intended. The latter sort of ratification is a legal presumption, raised against the principal because he has behaved in such a way that the party dealt with by the agent would be injured if the transaction was repudiated. It is really an equitable estoppel and is regulated by the law of estoppel. The estoppel may arise from the fact that the principal was silent when he ought to have declared his intention not to be bound by the agent’s act; provided, as said above, his silence leads the party dealt with to alter his position for the worse. This is identical with the principles governing estoppel by acquiescence in other instances not involving the relation of principal and agent. The question often arises directly between an agent and his principal, in cases where the latter tries to hold the former responsible for acting without authority. In such litigation, if the principal does not promptly repudiate the transaction, but waits until doing so will cause loss to the agent, or until it appears that the transaction will cause loss instead of profit to himself, he will be estopped to deny responsibility. A class of cases which frequently present the matter for decision, is where a broker or commission merchant has bought or sold property for a principal contrary to instructions. In such instances the principal is not permitted to remain silent after notice in order to watch the course of the market, and determine whether he will adopt or repudiate the deal according as it may prove profitable or the reverse. [Teasdale v. McPike, supra.] In the pres ent case it is certain the advertising to November 20th was not done by plaintiff in reliance on defendant’s failure to answer the letter of that date; and, hence, defendant’s silence is not ground to estop it from denying liability for installments of rent which had accrued previously. In other words, the presumption that it ratified the contract Lurie made with plaintiff ought not to be raised merely from its silence when notified of the contract. But it is estopped to disclaim liability for the rent of the bulletin-boards accruing subsequent to the date it had notice. Plaintiff requested a reply to its letter; and, in view of the fact that Lurie was conducting business in defendant’s name, a reply should have been made. In commercial affairs prompt answers to such notifications are rather strictly insisted on by the law. Plaintiff supposed it had a contract with defendant and was furnishing the advertising service on that supposition. Hence, the presumption is fair that if defendant had repudiated the contract, plaintiff would have terminated the service at once. The advertising tended to increase defendant’s sales and was beneficial to it as well as to Lurie. Therefore, defendant was interested in its continuance. A case exactly like this, as to the immediate point, and in which similar rulings were made, is Bryce v. Clark, 16 N. Y. Supp. 854. [See, too, Cornelius v. Reiser, 18 N. Y. Supp. 113.]

In view of certain facts established by the proof, we have doubted if defendant’s omitting to answer plaintiff’s letter requesting a payment on the rent due for advertising, was evidence for the jury on the question of an intentional ratification by defendant of the contract. In other words, whether the facts of the present case permit the application of the rule that the silence of a principal on receiving notice of an act done by his agent in excess of authority, is evidence of ratification when the third party dealt with is not prejudiced by the prin cipal’s silence. This point depends on whether the proof against an intentional ratification of the contract with plaintiff, was so positive as to leave no room for the finding that it was ratified. It is certain that defendant was chagrined when it learned Lurie had contracted in its name for the advertising, at once protested against the contract, and, because of it and other instances of unsatisfactory conduct, terminated business relations with him. But neither to Lurie nor the plaintiff did defendant declare an intention not to be bound by the agreement, and its attitude on that question was not made clear by anything it said or did — perhaps was not determined at once, but left open for further consideration and decision after legal advice was taken. It was, at least, equivocal so far as the record shows. As no conclusion on this point is compelled by the evidence, we hold the issue of intentional ratification was for the jury, and that defendant’s silence was a fact relevant to that issue. If the defendant at any time purposely ratified the agreement, it could not disclaim liability thereafter. [Andrews v. Ins. Co., 92 N. Y. 596; Brock v. Jones, 16 Texas 461; 1 Parsons,, Contracts (9 Ed.), p. 50, note (h).]

2. The proposition is advanced by plaintiff’s counsel that the defendant is liable because Lurie’s, contract for advertising fell within the scope of bis_antJmrily-as selling-agent, and the trial court should have directed a verdict for their client on that ground. In discussing this phase of the case we shall assume that Lurie was, in truth, what he was held out to be: an agent of the defendant, charged with the duty of conducting a tailoring establishment in its name and taking orders for men’s garments. Just what the precise legal relationship between Lurie and the defendant was — whether that of jobber and customer, principal and agent or partners (see Meyers v. Field, 37 Mo. 434), will not be determined; because the most that is claimed by the plaintiff is that he was an agent; and though the defendant asserts he was an independent dealer, it does not deny he was held out as a special agent. Therefore, as the case is presented, the decision of the immediate point turns on the extent of his real or apparent powers. It must be kept in mind that in what is said concerning the apparent powers pertaining to Lurie as agent, we mean such powers or authority as would have appeared to belong to him if, in fact, he had been appointed agent by the defendant — such authority as a man would seem to possess if designated as selling or sales agent, and placed in charge of a stock of merchandise for the purpose of selling. We do not refer to the fact that his agency was merely apparent; for, as said, it is, for the present purpose, taken for granted that he was in truth' an agent, as he was represented to be. The question for decision is, then, Did Lurie as agent of the defendant have authority to bind it by the contract in question? The facts on which hangs the answer to this question stand undisputed and are these: the defendant’s main business office or establishment is in Philadelphia; the evidence goes to show defendant is a tailoring concern of prestige and reputation; it had intrusted Lurie with a considerable stock of goods suitable to be manufactured into men’s clothing; he was commissioned to open an establishment in defendant’s name, in a large city, and procure orders for tailor-made garments by showing the goods in his custody and ostensibly selling cloth off the bolts; the garments were manufactured in defendant’s Philadelphia establishment according to orders and measurements taken by Lurie in St. Louis and transmitted; but the impression gathered from the evidence is that this fact was not known to the customers, nor intended to be; Lurie was permitted to display defendant’s name on signs and stationery, with his own name beneath and followed by the title “selling agent;” that the character of his agency was special and not general was denoted by his title of selling or sales agent, and as such plaintiff dealt with him. Those are the facts on which the authority in him to make the contract for advertising in defendant’s name, is affirmed and denied. To the public eye the business Lurie conducted must have appeared to belong to the defendant and to be a branch establishment under the management of an employee. The title by which that employee was designated, signified that he was not a vice-principal or general manager; but one appointed to perform a particular duty and therefore of restricted powers, among which the primary power was to make sales. The public had the right to assume he was authorized to sell — to take and fill orders for men’s garments; for that act was within the main purpose of his commission as signified by the title “selling agent.” He had no express power to incur expense in defendant’s name for advertising, either on bulletin-boards or in other modes. This does not mean that he had neither real nor apparent power to do so; but simply that the power was not expressed in the words of his commission. The power was not explicitly conferred. Whether or not it was implicitly conferred, or whether, in view of the character and circumstances of the agency, it appeared to have been conferred, we must determine. It has proved difficult and, we may say, impossible, to reach a confident conclusion on these points; which, as will appear below, we deem to converge into a single point, when narrowly scrutinized. The books teem with adjudications about what acts of various sorts, agents may or may not do beyond the express words of their commissions; but no case very analogous to this one has been found in an exhaustive search for a precedent. Therefore we have been compelled to resort to elemen tary principles and rules. But among the general rules by which the authority of agents is controlled, are two that, in their struggle for enforcement, conflict in close cases; and which of the two ought to control the decision in this controversy, as likely in many others, is hard to say. One rule seeks to protect principals against wrongful assumptions of authority by agents; and to do this gives special weight to the doctrine that a man has the right to extend or restrict the powers of his agent as his judgment dictates. The other rule seeks to protect the public against losses due to the appearance of power in an agent; and, therefore, emphasizes the maxim that where one of two persons, both free from a fraudulent motive, must lose in consequence of the act of one of them, he whose innocent act entailed the loss must bear it. This principle lies at the root of most of the rules concerning the apparent authority of agents. [Story, Agency, sec. 127, and note.] The perplexity in particular cases, and in this one, is to know whether the third party, by failing to inquire as far as prudence demanded concerning the agent’s authority to do the contested act, brought about a situation from which loss must occur ; or whether the situation was due to the principal’s having unwittingly lent to his agent the semblance of right to do the act. The problem arises when there is no doubt that the authority the agent assumed to have was never intentionally conferred on him. But it is by no means always easy to say whether or not the authority for a given act was conferred either by design or inadvertence. It is usually plain that it was or was not within the language of the agent’s commission, the language being undisputed. In the present case it is plain that express authority to advertise was not given; for no authority but to sell was expressed. But it is not, for that reason, plain that Lurie was not authorized to advertise, as a measure essential to the performance of the duty to sell; no positive restriction against advertising having been imposed on him. As intimated above, real authority may be implicitly as well as explicitly contained in a commission. Hence, it is to be ascertained if Lurie was impliedly commissioned to contract for advertising or appeared to be.

Text-writers are accustomed to enumerate categorically the sources of an agent’s authority; and it will be useful to examine those sources for light on the point in hand. Putting aside authority expressly vested, which Lurie lacked; authority by ratification which has been considered above, and that springing from the right to assume powers to avoid loss in an emergency, ■ which ■ is not germane to the facts, there remain the authority derived from custom or general usage, that derived from a principal’s conduct in permitting an agent to act outside the scope of his commission as expressed in the language used, and that authority called incidental, which accompanies express authority. One ground of liability on the part of a principal which is akin to, or a corollary of, the two sources of authority last stated, may be found in the following rule recognized by the books: Where a man has placed an agent in such a position that a person of ordinary prudence, conversant with the usages of business and the nature of the particular business, is led to believe the agent has a certain authority and, without negligence, deals with him on that assumption, the principal is estopped to repudiate the agent’s act or agreement. [Johnson v. Inv. Co., 46 Neb. 480; McNichols v. Nelson, 45 Mo. App. 446.] A standard author says a principal is responsible when he justifies, a party dealing with his agent in believing he has given authority. [1 Parsons, Contracts, 44.] But when has he given it or justified a forty in believing he did? are the points of difficulty. No proof was adduced in the present case to show what aré the customary powers of agents like Lurie; and we know not that there is a custom attaching any power to them. Neither was there proof that the defendant had recognized contracts made by him in its name, or tolerated a course of business which would entitle the plaintiff to believe in his right to make the contract in issue. If defendant had done what gave plaintiff the right to presume in favor of Lurie’s authority, so as to estop it from denying responsibility, it is because his being in charge of an establishment conducted by him as sales agent, in defendant’s name, would so naturally raise the belief in a prudent mind that he was authorized to make the agreement in dispute that, according to the law of estoppel, the defendant ought to be held. If defendant is exonerated, it is because the words “selling agent” were such notice to plaintiff of the limit of Lurie’s authority that it was put on inquiry, and contracted at its peril if it failed to inquire. The correspondence shows other persons besides plaintiff were imposed on by Lurie’s appearance of authority. But aside from this matter of estoppel, Lurie may have had actual authority for the contract, because to advertise was necessary in order to sell. The law presumes a principal intends to vest an agent with power to do1 auxiliary acts which are essential to the discharge of the agency, unless they are forbidden. And even when they were forbidden, but the party dealt with was unaware of the fact, the same presumption arises. Though all apparent authority is actual authority in legal effect, sometimes it is real as proceeding from the intention of the principal, and sometimes fictitious, as legally presumed. Now when the validity of an agent’s agreement or act is drawn into question and depends on an incidental authority, the rule that he may do all things necessary to accomplish the purposes of the agency, and the rule that the principal is bound by an estoppel if he has attached such circumstances to the agency as to induce reliance on the agent’s power to agree or act in a matter, would seem to converge and be, in effect, only different methods of giving effect to one principle, to-wit: that an incidental authority must spring from necessity. In other words, third parties will not be held justified in assuming power in a special agent to do a given act as incidental to his agency, unless the act is necessary to the execution of the appointment. Does this rule mean that the thing done must have been absolutely indispensable, or appropriate, or merely convenient? If it is indispensable, in what respect? Indispensable in order to start the business of the agency, or to make it a success? And who shall decide upon the necessity; the court or the jury? Is it an issue of law or of fact? As to the first question we find a diversity of rules, or, at least, of statements. It has been declared to be the duty of third persons dealing with an agent, when the nature of the agency is known (i. e., that it is special) to ascertain the extent of the authority the agent may exercise; and that the principal will not be bound by any act not, warranted expressly by, or fairly and necessarily implied from, the terms of the authority delegated. [1 Clark and Skyles, sec. 206c, pp. 486, 489, and cases cited in footnote.] But it has been held, too, that all appropriate and reasonable modes of executing a conferred authority are included in it. [Nat’l Bank of Republic v. Bank of Baltimore, 112 Fed. 726; Mechem, Agency, sec. 311.] Advertising is an appropriate means for attracting custom and making sales; and if the authorities just cited state the rule accurately for special agents, undoubtedly Lurie had the power to incur moderate charges for advertising. But to bind a principal by any contract made by a special agent which a court or jury may deem appropriate to the purpose of the appointment, would encroach greatly on the doctrine that holding an agent out as special warns the public to inquire concerning the scope of his authority. Much of the protection to principáis afforded by that doctrine would be lost-, and lax dealings with agents by third parties encouraged. Under the guise of powers appropriate to the chief duty of an agent, principals could be involved in contracts and enterprises foreign to their intention and which they never authorized. It is a reasonable view that a special commission, such as Lurie held, is given in order to retain in the principal control over the business or transaction confided- to the agent, except in so far as the latter is empowered to act either by the terms of his commission or usage or necessity. In our judgment it is best to be conservative in making one person responsible for what another does. Much injustice results daily from unduly extending such responsibility, both in cases of principals and agents, and masters and servants. It is true that the business of this age requires manifold agencies unknown to the past; and true that the transaction of affairs with the celerity demanded by the spirit of the times, requires that principals, especially incorporated companies, should be bound by the doings and agreements of their agents more than they formerly were. But it is true, too, that the facilities for ascertaining the authority conferred on agents, have been vastly increased. Where once a slow mail might be weeks or months in bringing an answer to an inquiry, now the railroad or telegraph will bring it in a few hours or minutes. There seems to be no good reason for relaxing the rules on this subject whose justice has been proved by long experience.

The few cases we have found which treat of the powers of an agent in charge of goods, have justified incurring expense for the principal only when it was absolutely necessary, as opposed to expedient, to do so; like renting a storeroom or borrowing money to pay freight on the goods so as to get them from a carrier. [Baldwin v. Garnett, 111 Ga. 876; Tucker v. Woolsey, 64 Barb. 562; Rankin v. McFarlane Carriage Co., 75 S. W. (Ky.) 221.] The word “necessary” in common usage, connotes different degrees of necessity.' [Cotton v. County Comm., 6 Fla. 620, 629.] It sometimes means indispensable; a.t others, needful, requisite, incidental, or conducive. [Chambers v. St. Louis, 29 Mo. 543.] In its primary sense it signifies a thing or act without Avhieh some other thing or act cannot exist or be done. [Commonwealth v. Morrison, 9 Ky. 75, 85.] Lurie’s authority was special. Now, as Lurie was not given entire control over the particular business, but only the right to do specific acts (make sales), he was a special agent. [1 Clark and Skyles, Agency, p. 6.] Therefore, the natural inference is that as to policies and expedients to promote the business, but not indispensable to its successful management, and about the wisdom of which opinions might differ, the defendant intended to reserve the decision to itself; and for that reason gave Lurie a title which denoted restricted authority. Hence, our opinion is that the word “necessary,” as applied to determine, in this case, the agent’s poAver to do an incidental act, should be held to mean an act or measure requisite to enable him to discharge his main duty; something more urgently required than is signified by the words “appropriate,” “suitable” or “expedient.” It should not be held to mean an act Avithout which the agent could not move at all toward achieving the main object of the agency; or without AA’hich, at a given stage, efforts to perform must utterly cease; but one requisite for the achievement of it according to the desire and intention of the principal; an act necessary in the sense that the main scope and object of the agency must fail unless it is done. We speak, of course, in view of the fact that no usage on the subject is shown. We think an instruction in the present case defining the word in the sense we have indicated would be correct. The tailoring business can be carried on without extensive advertising on bulletin-boards, or otherwise; but advertising is used as a means to increase business in cities where competition is keen. It is a good means to build up custom and sometimes may be necessary, according to the meaning of the Avord we have pointed out as the proper one to adopt in the present case; though not necessary in the sense that the business is absolutely impracticable without it..

As to whether the question is one of law or fact, is to be determined next. Text-writers give long schedules of acts which the courts have decided agents may do or not, as incident to their duty; such as the incidental powers of cashiers, adjusters of insurance losses, factors, managers of plantations, superintendents of mines and other kinds of agents. Most of these adjudications turn on usage having vested the agent with the right he exercised. No doubt around many agencies which are of wide and ancient vogue, for instance bank cashiers, custom has so firmly crystallized certain acts as incidentally authorized, that the courts are justified in judicially noticing and enforcing the custom. As said, the existence of the usage is a question of fact, and its effect on a contested transaction a question of law. So where an apparent authority is asserted on a course of dealing pursued by an agent, the question of whether the principal has tolerated such dealings is for the jury. If he is found to have done so, the legal result is that he is bound by the act he disputes. But besides such instances, there are many in which courts have pronounced for and against the power without regard to usage, or the previous course of business, and purely on the theory of incidental necessity. We find decisions that this question must he remitted to the jury. In Nicholson v. Golden, 27 Neb. 132, it was said the apparent authority of an agent was to be gathered by the jury from all the facts and circumstances in evidence; citing Brooks v. Jameson, 55 Mo. 505; Sigerson v. Pomeroy, 13 Mo. 620; Howe v. Machine Co., 32 Iowa 435, and Hough v. Ins. Co., 3 Wood & M. 529. In the Nicholson case the point for decision was not whether the agent had power to do what he did as incident to a power expressly conferred; but whether he had been given full control over the affair intrusted to him for settlement, as to which point the testimony was contradictory. So in Hull v. Jones, 69 Mo. 587, the question of fact for the jury was as to the existence of an agency in the person who had acted as agent; not the scope of his authority. In Brooks v. Jameson, the point decided was that the power of an agent may be proved by the habit of the business; which means, of course, that where similar actions to the one performed by the agent are proved to be customary, the act is valid. In Sigerson v. Pomeroy, the question was whether the agents had departed from their conceded instructions or had obeyed them. In Howe v. Machine Co., there is a dictum of the same purport as the one in the Nicholson case. In Hough v. Ins. Co., the agent’s authority was to be deduced from what he had done, coupled with the recognition of his doings by the company he represented; therefore the inquiry did not relate to incidental powers. There are cases more in point. In Johnson v. Inv. Co., 46 Neb. 480, it was said: “Whether or not an act is within the scope of an agent’s authority is to be determined ... as a question of fact from all the circumstances of the transaction and the business.” This rule was approved and followed in Holt v. Schneider, 57 Neb. 523, 530, and in Reid v. Kel logg, 8 S. Dak. 569. In the latter case the court said: “The evidence upon the questions presented was such that different minds might reasonably draw different inferences therefrom. . . . While the question as to the actual agency, upon undisputed facts, is usually one of law, the question of ostensible agency depends so-largely upon inferences and conclusions drawn from these facts, as to be a question of fact.” The above are the only decisions we have found by American courts which squarely hold that the question of what incidental powers an agent possesses as necessary to enable him to execute the purpose of his agency, is to be determined by a jury. In Arthur v. Barton, 6 M. & W. 138, it was held that the necessity of an agent’s incidental act was for the jury; and that is the English rule. [See, too, Loudon, etc., Soc. v. Bank, 36 Pa. St. 498; Huntley v. Matthews, 90 N. C. 101.] In Gulick & Holmes v. Grover, 33 N. J. L. 463, the power to do the act in question depended on the previous course of business followed by the agent with the principal’s consent, there being no dispute about the facts. The court said that when the facts are conceded, the question of whether the agent had the requisite authority to bind his principal is for the court. In Day & Frees v. Lumber Co., 93 N. W. (Neb.) 688, the court examined the facts and held that the agent of a lumber company aj>peared to have power to waive a mechanic’s lien. In Davies v. Steamboat Co., 94 Maine 379, it was said to be for the jury to decide whether the captain of a passenger steamer had power to charge the owner with the duty of delivering telegrams addressed to passengers, and that the decision depended on whether the particular act was necessary to the successful promotion of the principal’s business. But despite these remarks the court decided the point itself, by ruling that the steamboat company owed no duty to its passengers to receive and deliver telegrams as incident to its business, and that the act of the captain in taking the message to deliver to the person addressed was outside his duty; that the company would .not be liable unless it held the captain out to the world as having authority. A reading of the Missouri cases we have cited will disclose that the courts of this State have assumed frequently to decide the question of necessity. This occurred in the large majority of the cases wherein the inquiry as to incidental authority was involved. In truth, but little attention has been given to the question of whether the court or the jury should determine the issue of necessity; probably because the right to act or not, in most instances, was deemed to be obvious. After attentive study of the question, our best judgment is that the necessity of advertising to the extent Lurie did, in order to make sales which would be profitable and thereby realize defendant's desire and purpose in establishing the agency, is so close a question under present-day business habits in cities, that different inferences fairly may be drawn by different minds concerning whether plaintiff was justified in believing he had the right to contract for the advertising as incidental to his agency. In that contingency the point is one of fact and ought to be determined according to the experience and opinion of a jury. This rule was announced in the Nebraska and Dakota cases above cited, is the one observed by the English courts and was approved, if not adjudged, in Nicholson v. Golden, supra. [1 Clark and Skyles, Agency, p. 495, sec. 208; 1 Parsons, Contracts, 44; Huffcut, Agency, sec. 108; Johnson v. Hurley, 115 Mo. 513, 22 S. W. 492; Griggs v. Shelden, 58 Vt. 561.] It appears to accord with the definition of apparent authority commonly given in text-books; that it is such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally sup pose the agent to possess. Much of the apparent authority of an agent, whether asserted as incidental, or on usage, or on the agent’s previous course of dealing, rests on the principles of the doctrine of estoppel. The question is rather what third persons had the right to believe concerning the agent’s powers, than what powers the principal intended to confer. [Story, Agency, sec. 127, note 2; 1 Am. Lead. Cas. 568; Griggs v. Selden, supra; Pole v. Leask, 33 L. J. Ch. Div. (N. S.) 155.]

To give effect in the present case to sound principles, we think the jury should be instructed that before they can hold the defendant liable on the ground that Lurie had authority, as an incident of his .duties as selling agent, to contract in defendant’s name for advertising, they must find the advertising was reasonable in amount and necessary, in view of all the circumstances in which Lurie was placed, and not merely appropriate or useful; that if they so find, the plaintiff was justified in relying on Lurie’s apparent authority to contract for it, unless plaintiff had knowledge that he did not possess the authority, or the facts were such that a prudent man, in the exercise of ordinary diligence, would not have relied on his apparent authority.

The judgment is reversed and the cause remanded.

'Nortoni, J., concurs; Bland, P. J., concurs in paragraph one.