I dissent. The majority opinion concedes the fact that an agent's authority need not be actual but may be ostensible (sec. 7947, Rev. Codes), or implied.
Here, before the declaration of Sowter to the effect that he had authority to hire Phelps to do the plowing was admitted, Phelps had testified: "Q. And did he [speaking of Mr. Sowter], to your knowledge make such contracts of employment with various people in Fergus county? A. Yes, sir." Moreover, there was proof here that the defendant had paid $30 on the contract in question, and hence there was some evidence of ratification. (Sec. 7941, Rev. Codes.) Thus, where the extent of the agent's authority is proved prima facie by other evidence, as here the declarations of the agent as to the extent of his authority are admissible in corroboration. (3 C.J.S., Agency, sec. 524, p. 287, note 97; 2 C.J. 939.) No such proof appeared in the case of Benema v.Union Central Life Ins. Co., 94 Mont. 138, 21 P.2d 69, and in the other cases relied upon on this point in *Page 205 the majority opinion, and therefore those cases are not in point here.
I agree that it was error to exclude plaintiff's offered testimony showing that Sowter had made similar contracts of employment with other named individuals. This, however, would simply corroborate the statement of Mr. Phelps that he knew that such contracts had been made.
In my opinion, this case does not call for a new trial simply to enable plaintiff, who has already prevailed, to make additional corroborative proof.
I think the statement of Phelps that he knew that Sowter had made similar contracts of employment with various people in Fergus county was sufficient to show implied agency and to render admissible Sowter's statement that he did have such authority.
The cases of McKee Livestock Co. v. Menzel, 70 Colo. 308,201 P. 52, First Nat. Bank of Miles City v. Bullard,20 Mont. 118, 49 P. 658, and Baker v. Citizens' State Bank ofSt. Peter, 81 Mont. 543, 264 P. 675, are not in point here, for in those cases the proof simply went to show that the witness "understood" or "entertained the opinion" that the agent had the necessary authority. Here the proof was positive that Sowter had actually made similar contracts with others to the knowledge of Phelps. I furthermore think the court properly exercised its discretion under subdivision 4 of section 10535, Revised Codes, in admitting the declaration of Sowter.
I think that, so far as defendant is concerned, the case was fairly tried and that the judgment should be affirmed.