On Petition foe a Rehearing.
Reinhard, J. —The appellant’s counsel, with much earnestness and evident sincerity, press upon us the favorable consideration of their petition for a rehearing, and insist that we reached an erroneous conclusion in affirming the judgment. It is claimed in the first place, that there is absolutely no evidence in the record from which the jury had a right to infer, legally, that the appellant’s husband, Abraham G. Barnett, when he employed the appellees to negotiate the sale of the property and agreed to pay them a commission therefor, had any authority from her whatever to do so, and hence that there is a clear failure of proof of the agency relied upon.
It is not always necessary to the establishment of an agency that the authority be conferred before the commission of the act by which the same is exercised. If the act is afterwards ratified by the assumed principal, as where he accepts the benefits arising therefrom, this will be sufficient to establish the agency. Henry v. Heeb, 114 Ind. 275 ; Sims v. Smith, 99 Ind. 469 ; Lichtenberger v. Graham, 50 Ind. 288.
It was not essential, therefore, that the appellees should have proved that before the sale some specific authority to employ the appellees was conferred upon her husband by the appellant. If the appellees were the procuring cause of the sale, and the same was made in substantial compliance with the arrangement entered into between Abraham G. Barnett and the appellees, which the evidence tends to prove, and the appellant consented to said sale by receiving the purchase-money and executing a deed of conveyance, this was *420evidence of ratification from which the jury* had a clear right to conclude that there was an agency. From the sale the appellant realized the sum of $33,000 for her property, a portion of which she received in cash and the remainder was applied to the extinguishment of her indebtedness. She can not be heard to say, therefore, that she will rétain that which is beneficial to her from the sale, and renounce the accompanying burdens. She must be held to have ratified the entire transaction, including the agreement of her husband when he engaged to pay the appellees a fee for their services. Moreover, there was evidence other than that of ratification which tended to establish the agency. Gluting testified that he knew these parties and their circumstances; that he was acquainted with the appellant’s property; that previously to 1887, and since then, Mr. Barnett had generally managed the business affairs of his wife and looked after this property; that the appellant herself lived in the country and gave her property in the city no personal attention, while her husband was doing business in the city of Fort Wayne where the property was located and gave it his attention; that the witness knew what the property was used for; that the husband had sold other property of a like character for her, and she had made no objections, etc.
If the witness knew these facts, and the jury believed them, we see no reason why they might not constitute a pz'oper basis for the conclusion that Barnett was. his wife’s agent for the sale of this property. We do not understand that any particular words of authority are necessary in such cases as this to establish an agency. The relation of principal and agent may be shown by circumstantial evidence alone; and where there is evidence that one openly acts for another under circumstances implying a knowledge on the part of the supposed principal, this makes a prima facie agency, and authorizes the court to admit evidence of the declarations of such agent. Indiana, etc., R. W. Co. v. Anderson, 114 Ind. 282 ; Isbell v. Brinkman, 70 Ind. 118.
*421Proof that the principal permitted the person claimed to be the agent to perform similar acts and transactions with other persons is competent as tending to establish such agency. Hitchens v. Ricketts, 17 Ind. 625 ; Morehead v. Murray, 31 Ind. 418 ; Cunningham v. Mitchell, 30 Ind. 362.
If a person holds out another as his agent, by placing him in control of his business or property, and a third person acts upon the faith of such appearances, the principal may be bound by the acts of the agent, if within the scope of such ostensible authority, although, as between the agent and employer, no such authority in fact existed. Over v. Schiffling, 102 Ind. 191.
The court instructed the jury that in determining the question of agency they had a right to consider that Mr. Barnett was the husband of the appellant.
The appellant contends that this instruction was calculated to mislead the jury, and was erroneous. We can not agree with her in this view. We can not conceive upon what principle it could be claimed that in the investigation of this question the jury might not consider the relationship of the parties. It is certainly one of the circumstances which, when connected with others, might constitute ample proof of an agency. The instruction goes no further than to call the attention of the jury to this. It does not assume that the relationship of husband and wife is enough to establish the agency, nor could the instruction be construed to intimate that from such relationship alone an agency might be implied or inferred. There was no error in the instruction.
We also think it was proper for the court to instruct the jury they might consider the fact, if proved, that Barnett transacted his wife’s business generally, and that he negotiated this particular sale, some months afterwards, and that she ratified the same. We have already cited authorities bearing upon this point.
Counsel for appellant now claim that there is no evidence that this particular sale was negotiated by Barnett. But *422Bond himself, to whom the conveyance was made, testified that the only negotiations he had with any one besides Morgan was Barnett, and that he, and not the appellant, took the check and delivered the deed of conveyance. It is not shown where Mrs. Barnett had anything whatever to do personally with transacting this business.
Filed Jan. 21, 1892.Again the appellant complains because the court told the jury in an instruction that in determining the question of Barnett’s agency they might consider whether or not the appellant had offered any evidence denying the same. This was right. Circumstances and facts had been proved, as we have seen, tending to make at least a prima facie case of such agency. If it did not exist, the appellant was a competent witness to testify that she had never conferred the authority by which her husband assumed to act as her agent, if he did so. That she failed to do this was a circumstance the jury had a right to consider. If there was any reason for the absence of her testimony it was proper to have shown that upon the trial. The rule that the failure of the defendant to testify shall not be considered against him applies only to criminal cases.
The court therefore committed no error in admitting the conversations with the husband of the appellant. There was at least prima facie evidence that he was the agent of his wife, and this was sufficient.
We have given the questions involved here a second careful consideration, but are not able to come to any different conclusion from the one first arrived at.
Petition overruled.