I dissent from the order denying a rehearing. The case presents a very simple question. Moore, *Page 101 Ferguson Co., the assignors of plaintiff, on September 1, 1893, delivered to the defendant at his warehouse in Oregon 14,500 bags. His written receipt of that date contains an express agreement to pay for all of these bags not returned or accounted for. A large number of bags were not returned or accounted for, unless their storage in Oregon under the directions of Crosby — the agent by whom they were delivered to defendant — was a sufficient accounting for them within the meaning of the contract.
The position of plaintiff was, that while Crosby was employed by Moore, Ferguson Co. for the purpose of delivering the bags and taking the receipt and agreement of the defendant, he was not their agent for any other purpose, and especially that he was not their agent to receive or direct the disposition of the unused bags. Upon this question the most that can be said is, that there was some slight evidence to support the theory of an ostensible agency, but the finding of the court was to the contrary, and there is evidence to support the finding. The only ground, therefore, upon which the judgment and order appealed from can be assailed consists in the rulings of the court excluding evidence offered to prove agency. I discover no error in these rulings. From the wording of the department opinion, it would be supposed that the contract of July 28th, referred to in the contract of September 1st, was excluded from consideration by the court. But such is not the fact. It was excluded, and properly excluded, when offered in connection with the cross-examination of one of plaintiff's witnesses, but when the defendant offered it as a part of his case it was admitted, and it contained a clause not quoted in the department opinion, relating to the shipment of grain, which was the particular matter referred to, and by reference incorporated in the contract of September 1st. The two contracts, construed together, plainly meant that the unused portion of the bags delivered September 1st were to be returned to Moore, Ferguson Co., and nothing in their terms implied or warranted the inference that the manner of returning them or accounting for them was committed to the agency of Crosby. The letters quoted and referred to in the opinion of the court show on their face, by their dates and their terms, that they refer exclusively to earlier transactions in which Moore, Ferguson Co. furnished *Page 102 other bags to Crosby, which were charged to him, though a portion of them were upon his order shipped directly to defendant. Other portions of the record make this still more plain. Crosby was furnishing defendant bags under their contract of July 28th. He purchased the bags of Moore, Ferguson Co., and had them shipped directly to defendant. The excluded correspondence related to that transaction, and so far from containing evidence of Crosby's agency, is a distinct and unequivocal repudiation of any agency. In the subsequent transaction of September 1st, Moore, Ferguson Co. did furnish bags directly to defendant upon the terms specified in the receipt and agreement of that date, and in that transaction they were represented by Crosby for the sole purpose, so far as the evidence shows, of delivering the bags and taking the written receipt and agreement of the defendant, showing the conditions upon which they were delivered and the price to be paid for the portion unused or unaccounted for.
It is in the concluding paragraph of the opinion that the reasons for reversal are summed up. I find myself utterly unable to agree with what is there said in any particular. The agreement was not excluded. The correspondence related to an earlier and distinct transaction, in which, as appears from the correspondence itself and all the other evidence, there was no dealing between Moore, Ferguson Co. and defendant, and no pretense of agency on the part of Crosby. And, finally, I do not understand it to be the law that an ostensible agency can be established by the declarations of the supposed agent, made out of the presence and without the knowledge of the supposed principal. *Page 103