I concur in the judgment, and in the opinion of Justice De Haven.
The superior court did not err in refusing to give the instructions asked by the defendant in the form in which they were put, for they did not state clearly or accurately the proposition of law upon which the defense rests, but certainly it was error to give the third instruction requested by plaintiff, unqualified by any statement of the proposition that the plaintiff, if a mere licensee of Boyd Brothers, could not recover for his loss if they made and maintained the opening in the fence for their own convenience.
The evidence in the case very clearly shows that the *573defendant had fully performed its duty by the erection of a sufficient fence, and that Boyd Brothers subsequently removed a panel for their own convenience. To counteract the effect of this proof, an attempt was made to show that defendant had agreed to close the gap by putting in a gate. But in my opinion, there was no evidence to justify a finding that the defendant ever made any such agreement. There was evidence that Daly, a section boss, promised to put in a gate, but no evidence that he had any authority to make such agreement in behalf of the defendant. No actual authority was shown, nor any circumstance from which an actual authority can be inferred, and his ostensible authority to bind the defendant did not extend to a matter as to which the obligation rested exclusively upon Boyd Brothers, and in no degree upon the defendant.