DISSENTING OPINION.
McCulloch, C. J.The conclusion reached by the majority that the contract for sale of the cotton discloses on its face the agency of Carter Murphy for appellant is, it seems to me, an erroneous construction of the contract. Of course, there is abundant testimony tending to show that it was intended by appellee and Murphy as a sale of the cotton by Murphy as agent for appellant. But, when we look alone to the face of the contract, it seems to me clear that it was not one for sale by the agent. On the contrary, its clear import is to show a sale by Murphy himself. The words “200 bales of Mrs. Moore’s staple cotton” is merely descriptive of the subject-matter of the contract, and the use of those words does not imply that the sale was being made by Murphy as agent for appellant. It was, on its face, in other words, the individual contract of Murphy, and not the contract of Murphy as agent for appellant. That being true, there was no question of apparent or implied agency involved in the case, for, since appellee accepted the contract showing on its face that Murphy was acting for himself, it can not be heard to say that it dealt with him upon the faith of the apparent agency for appellant. Arkadelphia Milling Co. v. Campbell, 141 Ark. 25; Cream City Glass Co. v. Friedlander, 84 Wis. 53; 2 C. J. 682.
It seems to me that there is no ambiguity in the contract, 'but, even if the language of the contract be treated as ambiguous with respect to the question whether it was the individual contract of Murphy or the contract of Murphy as agent for appellant, still appellee can not assert a claim against appellant on the basis of implied or apparent agency, for, in the absence-:of an express contract showing that appellant was to be bound as principal, appellee is not entitled to assert liability of appellant on the ground that he was induced to contract upon the purported agency of Murphy. The trial court, therefore, erred in submitting to the jury the question of implied agency or the apparent scope of the agent’s authority.
I am also of the opinion that there is no evidence at all to justify a submission of the question of actual agency. Of course, an agency can not be established by the declaration of the person who assumes to act as such agent, nor can it be presumed from the fact that the person did so assume to act as agent. That has been decided so many times that it is unnecessary to cite authority on the subject.
All that we have in the case that might be said to have a tendency to establish the authority of Murphy to sell appellant’s cotton was the fact that Murphy had in many instances made sales of cotton for appellant. It is settled doctrine that where an agency is once established it is presumed to continue as long as the agent assumes to act in that capacity without notice from the principal to the contrary. But that rule should not be applied under the facts in this case, for the acts of agency on the part of Murphy were too far apart and too remote from this particular act to raise the presumption of unbroken continuation of the agency. All that was proved in this respect is that from year to year Murphy made sales of cotton for appellant. She testified that he had no general authority to act for her, but that in many instances she authorized him to make sales of certain lots of cotton. This doctrine of presumption of continuation of agency ought not to be applied to acts extending from year to year, like selling the annual products of a farm. It seems to me to be a dangerous doctrine to say that when a farmer employs a cotton dealer to sell his crop of cotton during a given year, or from year.to year, it raises a presumption of continued agency during succeeding years. Neither is there any proof of ratification by appellant of the unauthorized sales made by Murphy. Appellant herself testified that in each instance when sales were made she gave express authority to her son, Carter Murphy, for that purpose, and there is no other testimony to contradict her statement. But, if her testimony be entirely disregarded, there is no other testimony tending to show that Murphy, in the previous sales of cotton made by him for his mother, acted without authority. The doctrine of ratification only applies where there is a previous unauthorized act. And where such ratification repeatedly occurs it may warrant the inference of continued agency.
Stress is laid upon the fact that appellant saw a copy of appellee’s letter to Murphy, but according to the undisputed evidence the copy she saw was not signed by Murphy, and she stated that she did not know that the latter had signed the contract, and understood that this letter was merely a proposal from appellee to purchase the cotton. This did not constitute a ratification or adoption of the contract, unless she was informed that Murphy had accepted it by signing the contract. She was not called on to act in any way or to repudiate the act of her son until she received information that he had undertaken to bind her to a contract of sale.
I am therefore unable to discover any evidence in this case sufficient to justify the finding that appellant either authorized the sale or ratified it or that she committed any act which would warrant any one dealing with Murphy to assume that he was her implied or apparent agent. Murphy was not clothed with any indicia of authority. The cotton was not sold by sample, as is customary in sales of cotton, for at the time this contract was executed none of appellant’s crop of cotton had been gathered. This was a sale in advance of the harvesting of the crop, and all that appellee has to rely on is to show that Murphy had sold his mother’s cotton raised during the previous years. I think this is not sufficient to establish agency.