Compress & Warehouse Co. v. St. Louis Cash Register Co. O'Hara in executing the note, as defendant's manager, was the act of the defendant corporation. The trial court took the view that the evidence adduced made the case one for the jury, and submitted it under instructions which required the jury to find, in effect, that defendant conducted its business, or permitted O'Hara to conduct it, in such manner as to induce one dealing with it under the circumstances, and while in the exercise of reasonable diligence and caution, to believe that O'Hara as secretary and manager, had power and authority to execute the note in defendant's name and behalf; and that defendant either knew that its business was so conducted or by the exercise of reasonable diligence would have known thereof. The question before us is one to be determined by our law [Ruhe v. Buck, 124 Mo. 178, 1. c. 183, 27 S. W. 412]. Section 9990, Revised Statutes 1909, in force at the date of the execution of the note, provides as follows: "The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose, and the authority of the agent may be established as in other cases of agency. The question as to O'Hara's authority, then, is one to be determined by the general law or principal and agent, as applied to corporate acts. The evidence shows that defendant made O'Hara its general manager and placed him in charge of the practical work of the company, the other officers of the company and its directors, being engaged in other pursuits and not devoting their time to the practical conduct of its business and affairs; and it is made to appear that in the transactions leading up to the execution of the note, conducted by rather voluminous correspondence between the parties, extending over a period of some months, defendant acted almost entirely through O'Hara. Numerous letters addressed by Nesbitt to defendant in its corporate name were replied to by O'Hara, and in reliance upon the authority thus apparently vested in Compress & Warehouse Co. v. St. Louis Cash Register Co. O'Hara, by defendant, the Warrant Warehouse Company entered into the arrangement with defendant which involved the execution and delivery to it of this note, and thereafter accepted the note executed in the manner aforesaid. Under the circumstances we think that the case was one for the jury; that plaintiff was entitled to recover upon a finding by the jury of the facts in plaintiff's favor under the instructions mentioned above. The evidence warrant the conclusion that O'Hara acted within the apparent scope of his authority; and under such circumstances the act of the agent is binding upon his principal. [Sublett v. Brewington, 139 Mo. App. 410; 122 S. W. 1150; Meux v. Haller, 179 Mo. App. 466, and cases cited, 162 S. W. 688.] In the case last cited, we said: "The existence of the agency, or the extent of the agent's authority, need not be established by direct and positive proof, but may be inferred from facts and circumstances in evidence. and if there is any substantial evidence from which the agent's authority may be fairly and reasonably inferred, the question is one to be referred to the jury. [See McCloud v. Telegraph Co., supra; 170 Mo. App. 624, 157 S. W. 101; Distillery Co., v. Van Frank, 147 Mo. App. 204, 126 S. W. 222; Phillips v. Geiser Mfg. Co., 129 Mo. App. 396, 107 S. W. 471; Hackett v. Van Frank, 105 Mo. App. 384, 79 S. W. 1013; Heffernon v. Boteler, 87 Mo. App. 316; Bonner v. Lisenby, 86 Mo. App. 666; Harrison v. Railway Co., 50 Mo. App. 332; Cummings v. Hurd, 49 Mo. App. 139.] The authority of the agent may be implied from the course of dealing between the principal and the agent. [See McCloud v. Telegraph Co., supra, 1. c. 630, 631, and cases cited.] And the scope of an agency is to be determined not alone from what the principal may have told the agent to do, but from what he knows or ought to know, in the exercise of ordinary care and prudence, the agent is doing in the premises.' [Law Reporting Co. v. Grain Co., 135 Mo. App. 10, 115 S. W. 475.]" 201 M. A.-14 Compress & Warehouse Co. v. St. Louis Cash Register Co. In Law Reporting Co. v. Grain Co., 135 Mo. App. 10, 115 S. W. 475, cited above, the principles here involved are discussed at length, and in making application thereof to the case in hand the court says: "If Harroun, when he assumed to contract in the premises for his principal, went beyond his delegated powers, his act, nevertheless, bound his principal, on the ground that it had by its negligence and omission of duty permitted third persons to reasonably conclude that he was acting within the scope of the powers conferred. It was the duty of the defendant, in the exercise of ordinary care, to have known in what manner its agent was handling its correspondence." In the case before us it is the authority of O'Hara to execute the note that is drawn in question, and not his authority to sign a letter; but in view of the fact that he was defendant's general manager, apparently clothed with authority to conduct its business generally, and was permitted to carry on this correspondence in a manner to induce the belief that he was authorized to bind the company by agreements made in its behalf in the premises, and to consummate the arrangement ultimately entered into between the parties by the execution of the company's note as previously agreed upon, we think that his act in so executing the instrument may properly be found to be the act of defendant. We do not say that O'Hara had implied authority to execute notes by virtue alone of his position as general manager; though in this connection it is to be noted that defendant's by-laws contain no provision lodging this authority in any particular officer or officers. Definitions of the term "manager," as applied to an officer of a corporation, will be found in Robinson v. Mining Co., 178 Mo. App. 531, 1. c. 539, 540, 163 S. W. 885. That the term "general manager" implies very broad powers must be conceded; but whether such an officer has authority to bind the corporation by notes and other like instruments executed by him in its name, doubtless depends upon the circumstances of the case. [In this connection see Thompson on Corporations (2 Compress & Warehouse Co. v. St. Louis Cash Register Co. Ed.). see 1585.] The facts of the instant case warrant a judgment in plaintiff's favor, we think, upon the ground that under all of the circumstances present the said act of defendant's general manager was one within the apparent scope of his authority. The cases cited and relied upon by appellant are not persuasive, in view of the particular facts involved. In First Nat'l Bank v. Hogan, 47 Mo. 470, the suit was upon a draft executed by one Parker, the secretary of an insurance company, who, alone, had no authority to execute such instrument under the by-laws; and "apart from the by-laws there was no evidence tending to show authority in Parker to bind the company." In Sanders v. Chartrand, 158 Mo. 353, 59 S. W. 95, it was held that the secretary of a corporation had "neither authority nor apparent authority" to sign the president's name to notes. None of the other decisions of our courts cited by appellant are controlling upon facts such as those here involved, and if cases cited from other jurisdictions can be said to lend any support to appellant's contention they are without influence in view of the decisions of our own courts which appear to us to be in point. In its reply brief appellant says that the letter written by defendant through O'Hara of date June 12, 1914, "advising the respondent of the policy adopted by the appellant company of discontinuing the acceptance of customer's notes precluded respondent from relying on the doctrine that a principal is bound by the acts of his agent to the extent of his apparent authority and required respondent, in case it relied on O'Hara's authority to issue a note in purchasing such paper, to prove that O'Hara actually possessed authority to do so." [Citing Hicks v. Nat'l Surety Co. 169 Mo. App. 479, 1. c. 493, 155 S. W. 71.] In this letter it is stated that defendant "had to discontinue" taking customers' notes because of the amount of capital which this required. Such statement could not have the effect ascribed to it by appellant; and a reading of the opinion in the Hicks case, cited in this Tate v. St. Louis & Southwestern Ry. Co. connection, will disclose that the letter there involved was of quite a different character. Finally, it is to be noted that defendant has retained whatever benefit accrued to it from the transaction involving the execution of the note in suit. Evidently some benefit accrued to it from the Herck notes, for it affirmatively appears that some collections were made thereon. Testimony for defendant tends to show that defendant's president did not learn of the existence of the note until "about a month or a month and a half" prior to the trial, though the suit had been then pending for some months. In any event, it was the duty of defendant to promptly return or tender back the benefits received, if it proposed to disavow the act of its agent. The judgment is accordingly affirmed. Reynolds, P. J., and Becker, J., concur. DAVID A. TATE, Respondent, v. ST. LOUIS & SOUTHWESTERN RAILWAY COMPANY, Ap pellant. St. Louis Court of Appeals. Opinion Filed March 4, 1919. 1. RAILROADS: Fires: Evidence: Circumstantial Evidence: Sufficiency. In an action, under section 3151, R. S. Mo. 1909, against a railroad company, to recover the value of a dwelling house, etc., which were destroyed by fire, and which were alleged to have been set on fire by a spark or burning cinders emitted by a locomotive engine operated upon defendant's railway tracks near by, and the evidenced adduced to establish the ultimate fact that the house was set on fire by a spark or live cinder or ember emitted by a passing locomotive is entirely circumstantial, held that the competent evidence adduced sufficed to warrant a finding by the jury that the fire originated in such manner. the house was set on fire by a spark or live cinder or ember |