The complaint in this action, showing that plaintiff and defendant are corporations, is in two counts; the first alleging “ that defendant is indebted to the plaintiff for moneys had and received by it from the plaintiff in the sum of $13,574.47, which sum is now due and unpaid.” In the second count it is alleged, substantially, that for many successive years the defendant did business with the plaintiff by depositing in plaintiff’s bank, at the city of San Diego, and drawing therefrom on its checks large sums of money; during which time the defendant frequently overdrew its account in large sums, which were repaid at various times, except as hereinafter alleged. “That between April 18, 1889, and November 1st of same year, the defendant, by its checks, regularly drawn on the plaintiff, overdrew its account in plaintiff’s said bank, in the sum of $10,754.91,” which, with interest at twelve per cent per annum, amounts to $13,574.47. For this amount plaintiff prays judgment. A special demurrer to the first count, on the ground of uncertainty, was sustained by the court.
The answer of the defendant specifically denies each allegation of the second count, except that each party is a corporation.
The case was tried without a jury, and the court found for defendant on all the issues, and rendered its judgment accordingly.
Plaintiff’s motion for a new trial, made on a bill of exceptions, having been denied, the plaintiff appeals *9both from the judgment and from the order denying a new trial.
1. Appellant contends that the evidence is insufficient to justify the findings of the court in any material par- ' ticular.
It appears that during the transactions in controversy the defendant was engaged in the business of marine carrier of freight and persons along the Pacific coast from Mexico to Alaska. Goodall, Perkins & Co., at San Francisco, were its general agents; but it had a local agent at each port on the coast where it did business. These local agents were under the control of the general agency, and were required to report directly to Goodall, Perkins & Co., at San Francisco. During the transaction in question, J. H. Simpson was the local agent for the defendant at the port of San Diego, in this state, and the plaintiff was there engaged in the business of banking. Continually since the organization of the plaintiff’s bank, in 1883, until October, 1889, Simpson had an account of his deposits and drafts of money with plaintiff’s bank, kept in the name of “J. H. Simpson, agent.” To this account he deposited in the bank, from time to time during each month, considerable sums of money collected by him for the defendant. During the same period he was treasurer of a Masonic lodge, and also of an Unitarian church, and from time to time deposited to the same account considerable sums of money belonging to the lodge and to the church, amounting to over twenty thousand dollars, besides twenty-three thousand dollars of his own money. All his checks upon this account were signed “J. H. Simpson, Agent,” and the greater portion of them made payable to himself, and actually paid to him. Of those paid to himself the greater portion were paid by drafts of the plaintiff on San Francisco, payable to Goodall, Perkins & Co. • There was nothing on the checks, save the name of the payee, to indicate the purpose for which they were drawn. Neither the checks nor the account indicated for whom Simpson was agent.
*10On or about October 1, 1889, Simpson was discovered to be some nine thousand dollars short in his accounts with defendant, which he professed to be unable to pay, and for that reason was removed from his position as agent of defendant. At the same time his account with the plaintiff was overdrawn $11,404.32, which, with interest at twelve per cent per annum, constitutes the amount sued for in this action.
If Simpson had actual or ostensible authority to borrow money for the defendant, the plaintiff is entitled to recover, otherwise not. This is the ultimate and pivotal question of fact presented for decision. Upon this question the trial court found for the defendant, and I think the finding is justified by the evidence.
The evidence is positive that no express authority to borrow money on defendant’s account, nor even to deposit defendant’s money in any bank, was ever given to Simpson; and there is no pretense to the contrary. But counsel for appellant contend, in substance, that such authority was implied from the necessity of borrowing money in order to carry on the business which Simpson was employed and authorized to do. The evidence, however, strongly tends to prove that no such necessity ever existed. It appears that Simpson occupied the position of agent for defendant at the port of San Diego since 1875, and that from some time in 1876 until the organization of the plaintiff bank in 1883, he had an account with the Commercial Bank of San Diego, similar to that which he afterwards had with the plaintiff; and that upon the organization of the plaintiff bank, as the successor of the Commercial Bank, his account with the latter was transferred to the former. His account in the Commercial Bank was often overdrawn to the extent of two hundred to three thousand dollars. Between the second.day of January and the thirty-first day of December, 1888, he overdrew his account in the plaintiff bank thirty-seven times, in sums ranging from one thousand to four thousand six hundred dollars; but these overdrafts were frequently canceled by deposits. On De*11cember 31, 1888, the account stood credited with a balance of $1,560.40 in Simpson’s favor; and there was a still larger balance in his favor on the thirteenth day of February, 1889, when he drew a check in favor of himself for $15,026.92; and the next day (February 14th) drew another for $5,000. These two checks were paid to him in drafts on San Francisco, payable to Goodall, Perkins & Co., which were paid accordingly. On February 14, 1889, the over-draft was $8,930; March 13th} $13,782; April 19th, $12,567; May 17th, $13,741; June 19th, $14,099; July 16th, $14,111; August 21st, $13,692; September 12th, $15,717; October 3d, $13,398; and October 11th, when the amount was closed, $11,404.32.
It was proved that all over-drafts from December 31, 1888, until the account was closed, were paid to Simpson in drafts on San Francisco, payable and actually paid to Goodall, Perkins & Co., as the general agents of the defendant. It seems incredible that the agents of plaintiff could have believed that any of these overdrafts were necessary to enable Simpson to carry on any business which he was authorized to do as local agent of the defendant at the port of San Diego, or that Simpson intended to use or could have used them for any such purpose. Nor, indeed, is there any evidence that they ever pretended so to believe. Yet the over-draft sued for must be included in those drawn since February 12, 1889.
Mr. Simpson, who appeared as a witness on the part of the plaintiff, testified that there never was any necessity for his borrowing money to carry on any business which he was authorized to do for the defendant; that enough money was always collected by him to pay the running expenses of all the business he was authorized to do; that all his over-drafts, which were paid to him by plaintiff in drafts on San Francisco, payable to Goodall, Perkins & Co., were made for the sole,, purpose of reducing the balance against him in his accounts with the defendant, kept by Goodall, Perkins & Co., and that *12he so informed Mr. Bryant Howard, the president of the plaintiff bank, before the 13th of February, 1889.
Mr. George C. Perkins, of the firm of Goodall, Perkins <fe Co., testified on behalf of the defendant that there never was any necessity for Simpson to borrow money for defendant for any purpose whatever.
As to the implied power of an agent to borrow money on account of his principal, the court of appeals, in Bickford v. Menier, 107 N. Y. 490, said: “If the transae. tion of the business absolutely required the exercise of the power to borrow money in order to carry it on, then that power was impliedly conferred as an incident to the employment; but it does not afford a sufficient ground for the inference of such a power, to say the act proposed was convenient or advantageous, or more effectual in the transaction of the business provided, for, but it must be practically indispensable to the execution of the duties really delegated, in order to justify its inference from the original employment.” (See also Hurley v. Watson, 68 Mich. 531; Mecham on Agency, sec. 399; Wharton on Agency, sec. 137; Morawetz on Private Corporations, sec. 606.) Section 2319 of the Civil Code provides that an agent has authority “to do everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his agency.” It' having been proved, as above shown, that there never was any necessity for borrowing money to effect any purpose of Simpson’s agency, it will not be presumed, without evidence, that it was proper or usual, in the ordinary course of the business in which he was employed, to borrow money without express authority, when there was no necessity for so doing.
2. There is no evidence of ostensible authority. Simpson testified that he never notified the defendant or its general agents that he had overdrawn his account with plaintiff’s bank, and that there was nothing in his correspondence with the defendant or its agents, or in the books which he kept for defendant, from which any such over-draft might have been inferred; and further*13more, that he had never informed defendant that he had an account with plaintiff or any other bank, and did not believe that defendant had notice of any such account before October, 1889. The only circumstance which it is chimed should have operated as notice of such account to Goodall, Perkins & Co. is, that seven or eight years before the trial they sent an expert accountant to examine the books kept by gjimpson; and on that occasion, in order to balance his account, Simpson exhibited his pass-book as a voucher for a small balance in his favor, in either the plaintiff’s bank or the Commercial Bank. The pass-book then exhibited showed the account to be in the name of “ J. H. Simpson, Agent.”
Mr. Perkins testified that Goodall, Perkins & Co. never had notice that Simpson had any account with any bank; that in 1884 they furnished him a good safe, supposed to be burglar-proof, in which to keep the money of the defendant; and they always supposed that Simpson purchased the drafts remitted to them with defendant’s money, until after they discovered that he was short in his accounts with them, and after his last over-draft upon plaintiff. There was no evidence that defendant ever paid or recognized any debt for borrowed money contracted by Simpson, or by any other local agent. Moreover, the circumstantial evidence had a tendency to prove that the agents of the plaintiff never regarded the account of “ J. H. Simpson, Agent,” as the account of the defendant, and never understood that defendant was responsible for Simpson’s over-drafts. 1. Although often anxious to have the larger over-drafts reduced, and requesting Simpson to reduce them, they never notified the defendant of the existence of the account, or of any over-draft, until more than fifteen months after Simpson was removed. 2. On June 20, 1888, the plaintiff took Simpson’s individual note, signed “ J.H. Simpson,” for seven thousand dollars, to cover his over-drafts on the account of “ J. H. Simpson, Agent.” This note was afterwards, in July, 1888, paid by three memorandum checks drawn by the cashier on the account of “ J. H„ *14Simpson, Agent.” 3. About the 1st of April, 1889, Mr. Howard, president of the bank, complained to Mr. Simpson of the amount of the over-draft, and requested that it be reduced. Simpson then told Mr. Howard that he (Simpson) was about to go to England, where he expected to get about twenty-one thousand dollars, and on his return, in about three months, he would pay the over-draft. Howard asked him if he felt sure of that, and Simpson answered that he did. It was then agreed between them that an over-draft not exceeding twelve thousand dollars would be allowed during Simpson’s absence, and that Simpson’s son, who was to act for his father during his absence, should-be allowed to overdraw the account to that limit. Thereupon Simpson gave the bank written authority to allow his son to draw checks and transact all banking business for him until further orders, and Simpson left for England on April 8, 1889. I think it does not appear when he returned, but it does appear that he failed to raise any money. On May 17th, 1889, the over-draft was $13,741; June 19th, $14,099; and Septemder 12th, $15,717; yet during that time no notice of the over-draft was given to the general agents of the defendant. In October, 1889, Simpson was removed on account of the deficit in his accounts with the defendant. Of this the plaintiff had notice, and soon thereafter Mr. Howard, the president of the bank, went to San Francisco and called on Goodall, Perkins & Co., and earnestly requested them to retain Mr. Simpson in their employ at San Diego, in the same position hé had before occupied, and offered to go on his bond for the faithful performance of his duties; yet did not then, nor until about fifteen months thereafter, notify Goodall, Perkins & Co. of Simpson’s overdraft in plaintiff’s bank, nor of any demand against the defendant.
Mr. Howard’s attempted explanation of these circumstances seems unreasonable and wholly unsatisfactory.
Section 2317 of the Civil Code defines ostensible authority to be “ such as a principal intentionally, or by *15want of ordinary care, causes or allows a third person to believe the agent to possess.”
If there was any evidence tending to prove this, I think it safe to say the preponderance of the evidence was against it, and fully justifies the finding of no ostensible authority. (Robinson v. Nevada Bank, 81 Cal. 107.)
3. It is contended that the sustaining of the special demurrer to the first count of the complaint was error prejudicial to defendant. Conceding that it was error, I think it appears that plaintiff was not injured thereby; for although it may be true, as stated by counsel, that a state of facts may possibly have existed entitling plaintiff to recover under that count without proving the authority of the agent, Simpson, to borrow money for defendant, .yet it is quite apparent from the evidence that no such state of facts did exist, and that the first and second counts were intended to represent the same cause of action.
4. The court sustained an objection to each of the following questions propounded by plaintiff’s counsel to plaintiff’s witness, Simpson: “3. When did you first commence to deposit moneys for defendant in the Consolidated National Bank? 2. State on whose account and for whom these deposits were made by you as agent.” But the witness was afterwards permitted to anwer and did fully answer these questions.
5. There was no error in allowing defendant to prove the amount of Simpson’s defalcations, that his overdrafts were made to pay the amount he was behind in his accounts with defendant, and that at the time of the over-drafts, he had money of the defendant’s on hand sufficient to pay all claims against the defendant. Obviously, this testimony tended to prove that the overdrafts were not loans to defendant, and that Simpson had neither express nor implied authority from defendant to make them; but that they were made by Simpson for the purpose of paying his own debt to defendant. For these purposes the evidence was competent, even *16conceding that it did not touch the question as to the ostensible authority of Simpson.
6. The trial, so far as the evidence was concerned, was closed on July 3d, when, by consent of both parties, the summing up by counsel was postponed until July 7th. On July 7th, the court being otherwise engaged, it was again postponed until July 8th. On July 8th it was again postponed until July 9th, by request of plaintiff’s counsel. On July 9th plaintiff’s counsel, without previous notice, moved the court to open up the case for the purpose of allowing the plaintiff to make proof that Simpson, in the transaction of defendant’s business, had signed receipts, advertised in the papers, and signed other papers and documents, “ J. H. Simpson, Agent and also that since the alleged over-drafts the defendant has taken conveyances of property from Simpson to secure defendant against loss. This motion was opposed, on the grounds that the proposed evidence was irrelevant and immaterial; and that there was no showing or suggestion of surprise, oversight, or inability to have procured the proposed evidence upon the trial. The court denied the motion. Counsel for appellant contend that this action of the court was an abuse of its discretionary power, but in this I think they are mistaken.
Neither the forms nor substance of the alleged receipts, advertisements, or other documents signed by Simpson as “ agent,” were shown. It may, therefore, be presumed that, unlike his account with and checks upon the plaintiff’s bank, they contained the name of the principal, — the Pacific Coast Steamship Company, — and expressly showed the receipted demands to be claims against the principal, the advertisements to be the advertisements of the business of the principal, and that the other documents expressly purported to bind the principal. Such evidence would have added nothing favorable to plaintiff’s case. Neither would the fact that defendant took security from Simpson, unless the security was given to indemnify defendant for loss on account of the demand of the plaintiff in suit, which is not pretended. *17Besides, there was no showing of any excuse for not having produced the evidence at the trial.
I think the judgment and order should be affirmed..
Temple, C., and Belcher, C., concurred.
The Court. Court.—For For the reasons given in the foregoing; opinion, the judgment and order are affirmed.
Hearing in Bank denied.