ON MOTION FOR REHEARING. Appellant in his motion for rehearing insists that this court overlooked the real question in this case, to-wit: Was there any evidence from which the jury could have found that plaintiff had authorized Green to sell the automobile to appellant?
We think that the opinion is not open to this criticism. This question, presented in the motion for rehearing, was the only question raised by the appeal and the only question considered in the opinion.
After setting out the evidence, contained in the record herein, the opinion plainly states that there was no evidence whatsoever of the authority of Green to sell *Page 111 the machine nor anything from which such authority might be inferred.
Appellant in his said motion seriously contends that since there was evidence that Green, in the presence of Carson, on one or two occasions attempted to get a third party to take the machine in question in trade, that this evidence would have "warranted the jury in implying from the conduct of Carson or from the conduct of Green in the presence of Carson that Green was authorized by Carson to sell the automobile."
It is axiomatic in the law of agency that "Authority to sell personal property need not be conferred in any particular manner. It may of course be expressly conferred but it may be also implied from circumstances. Where the authority is deduced from circumstances, the circumstances must be such as fairly to warrant the inference of the authority to sell. . . . The principal must have so acted as to clothe the agent with apparent authority to sell or must have conferred upon him, or permitted him to assume, the apparent indicia of ownership." [Mechem on Agency, Vol. 1, sec. 848.]
Where one has usually or frequently employed another to do certain acts for him or has usually ratified such acts when done by him such person becomes his implied agent. But the fact that a person employs another to do a specified act for him at a particular time raises no presumption whatever that the person so employed has authority to do a similar act at a different time.
Nor will authority to negotiate for the trade of property to one person at one time on certain terms, the transfer to be made by the principal in person, be any evidence of authority to sell and transfer the same property at some future time to another person on different terms.
The evidence in this case is that Green, in the presence of Carson, solicited a third party to trade the automobile in question for an electric machine. Green was present to make the trade if one was consumated, but no *Page 112 trade was made and Green subsequently sold the automobile for cash at terms fixed by him.
We are of the opinion that Green's authority to sell the automobile to appellant at his own terms, cannot be presumed from the fact that he in a particular instance, in Carson's presence, negotiated for a trade of the automobile for another car to a third person.
The Commissioner recommends that the motion for rehearing be overruled.