Opinion of the Court-Belknap, J.

the power to direct, has a general and discretionary power within the scope of his agency.

The law touching the liability of corporations arising from the acts of their agents has been greatly modified, as will be seen be seen by reference to recent decisions.

In Adams M. Co. v. Senter, 26 Mich. 73, the court said: "The next question refers to the extent of Frue's authority, independent of specific and expressly granted powers. We are not satisfied that any testimony would be needed to show the extent of the ordinary powers of an agent in charge of such a mine. The authority of such officers must, within the usual range of business, at least be recognized judicially, like that of bank cashiers, vessel captains, and other known agents. The mining law recognizes agents by name, as known representatives upon whom process may be served. They are the persons who have the charge, personally of the local business at the mines, and are necessarily to be treated, in law, as general agents, to do all that is fairly within the scope of corporate business in conducting the operations in that locality. The testimony of Mr. Palmer, which shows the usual range of such agencies, indicates no more than should be inferred. The business could not be conducted at all without a very wide discretionary power. There is no reason, and can be no legal principle, which will put the agent of a corporation on any different footing than the agent of an individual in regard to the same business. A general agent needs no instructions within the range of his duties, and any limitation on his usual powers would not bind others dealing with him and not warned of the restrictions."

In Grafius v. Land Co., 3 Phila. 447, the president of an incorporated company was intrusted with the management of an enterprise. His authority was limited by the directors, and did not authorize him to render the corporation liable for the services of the plaintiff. These facts were established in defense, but the court said: "When a body, incorporated avowedly for a special object, intrusts its president, or other principal officer, with the manage

Opinion of the Court-Belknap, J.

ment of the business for which its powers have been conferred upon it by the courts or the legislature, it necessarily gives him the air and aspect, and clothes him with the functions, of a general agent, and should not afterwards be allowed to say that his powers are, in fact, special, and not general, to the injury of those who have trusted him on the faith and credit of the assets and resources of the corporation. In general, those who deal with an agent are bound to ascertain the scope and extent of his authority, and cannot go beyond it for the purpose of charging the principal, even when they have been misled by their own credulity and the misrepresentations of the agent. But when a principal puts the agent forward as a general agent, or places him in a position where others are justified in the belief that his powers are general, the restrictions which may be imposed privately on the agent, will be immaterial, except as between him and the principal, and can have no effect on the rights or remedies of third persons."

A similar question arose in Lee v. Pittsburg C. M. Co., 56 How. Pr. 376, and was discussed by the court: "What general or special powers were by the bond expressly conferred upon Mr. Mullin as such president and manager, or what power inhered in those officers, we can only determine (in the absence of positive evidence) by inferences from such facts proved as throw light on this point, aided by the presumption that, as the chief executive officer and manager of the company, he must have been clothed with some powers and duties which, of necessity, pertained to those positions, as it was shown that the business for which the defendant was organized was the mining, shipping, and selling of coal; that it had mines in Pennsylvania, and large quantities of coal for sale, which it sought to market in Buffalo and the neighboring province of Canada. We may fairly presume, further, that the defendant's president and manager had, by virtue of his offices, authority to make those contracts in defendant's behalf which it was necessary some agent should make for the prosecution of its business, and which the daily exigencies of that business might

Opinion of the Court-Belknap, J.

require. The hiring of operatives to carry on the work of mining coal, the making of contracts for the shipment of coal to the various markets, the employment of agents to receive and take care of coal at those markets, to attend to its sale, and to collect and remit the proceeds, were necessary to the operations of the corporation; and it was also necessary that some agent should be clothed with authority to make such agreements. The public would have the right to assume that the president and manager of the company claiming such authority and exercising it, did lawfully possess it, and treat with him accordingly.

66

Upon similar presumptions all business men deal with the executive officers of banking, insurance, railroad, manufacturing, and other corporations, whose operations move the vast and complicated machinery of trade and commerce. Their boards of directors may, and, no doubt, often do, adopt rules and regulations defining the powers and duties of the various officers through whose agency the corporate powers and franchises are exercised. But such rules and regulations are to be found only upon the minutes of the directors' proceedings, or other private records of the corporation. They are not published, nor do the public, with whom the officers of a corporation transact business, know, or have the means of knowing, what such rules and regulations are. And it often happens-so often as to be the rule rather than the exception-that the chief officers of a corporation exercise a very wide range of powers, virtually grasping the entire direction and control of all its operations, with the tacit consent and approval of the corporation, though it has never by any direct vote or recorded act defined the nature or extent of their authority. It is, therefore, very difficult, if not impossible, for those having dealings with corporate bodies to determine, except by circumstances and inference, what authority such officers have, or, in case of litigation, to prove their authority by positive evidence. Ought not the same evidence upon which prudent business men ordinarily infer the existence of the authority, to be satisfactory to courts and juries? And

Opinion of the Court-Belknap, J.

would not the enforcement of more stringent rules embarrass and hinder the operations of trade and commerce, and prove vexatious and injurious to the interests of the corporations themselves?"

These considerations led the court to the conclusion that defendant's president and manager was the officer who, in the ordinary course of business, would be expected to possess authority to employ the plaintiffs, and plaintiffs had the right to presume that the officer was so authorized. (F & M. Bank v. B. & D. Bank, 28 N. Y. 425; T. W. § W. R. Co. v. Rodrigues, 47 Ill. 188; McKiernan v. Lenzen, 56. Cal. 61; Southgate v. A. & P. R. Co., 61 Mo. 89; In re German M. Co., 19 Law & Eq. 591; Walker v. G. W. R. Co., 2 L. R. Exch. 228; Wild v. N. Y. & A. S. M. Co., 59 N. Y. 644.)

Further objection is made to the introduction in evidence of the admission of the superintendent, upon the ground that it was the statement of a past transaction and formed no part of the res gesta. Plaintiff's theory is that the lot of wood of eighty-five cords was set apart for the defendant, but that defendant had not accepted it, and therefore the transaction was incomplete and continuing. In this view, the declarations were made in the course of the transaction and were admissible.

Objection is also made that the evidence is insufficient to support the verdict. This objection is based upon the fact that plaintiff allowed Paquin to deal with the wood in such a manner as to lead defendant's agents to believe he owned it. This fact constitutes the estoppel pleaded by defendant. One hundred and sixty cords of wood were in controversy. Plaintiff recovered judgment for the return of ninety-five cords of wood, or the value thereof. There was evidence tending to show that plaintiff was estopped from asserting ownership to the fifty-cord lot; that the corporation had notice of plaintiff's claim of ownership before it accepted the eighty-five-cord lot. The evidence upon these matters was conflicting. It was the province of the jury to determine these facts. With that determination we cannot

Opinion of the Court-Leonard, J.

interfere. If defendant had notice of plaintiff's claim of ownership before its acceptance of the eighty-five cords of wood, plaintiff was entitled to recover them or their value. There was no controversy as to the fact that ten cords of other wood belonging to the plaintiff had been taken by defendant. There being testimony to sustain each of these matters, it is evident that the evidence is not insufficient to sustain the verdict.

The judgment and order of the district court are affirmed.

[1171.]

LYON COUNTY, RESPONDENT, . ESMERALDA COUNTY, APPELLANT.

JURISDICTION-APPEAL.-This court, under the practice act, has jurisdiction only in cases commenced in and tried by a court. The legislature may enjoin upon a judge the performance of judicial functions, in matters outside of actions or proceedings in court; but, in such cases, there is nothing in the statutes authorizing an appeal from his orders. IDEM-COURT PROCEEDINGS-CHAMBER ORDERS. --No appeal lies to the supreme court from an order of the district judge requiring the county assessor of Esmeralda county to file in the district court a statement of taxes, as required by section 6 of the act of March 1, 1883. (Stat. 1883, 100.) The proceedings required by the statute were in no sense court proceedings, as such, and the fact that the order was made by the court instead of the judge, does not change its character.

APPEAL from the District Court of the Third Judicial District, Lyon County.

The facts are stated in the opinion.

D. J. Lewis, Wells & Taylor, and J. F. Boller, for Appellant.

W. E. F. Deal, for Respondent.

By the Court, LEONARD, J.:

At the last session of the legislature a statute was passed entitled "An act to detach a portion of Esmeralda county,