On Motion for Rehearing..
MR. CHIEF JUSTICE BRANTLYdelivered the opinion of the court.
Appellant has submitted a petition for a rehearing herein, in which contention is made that the conclusions of the court are wrong, for the reasons (1) that it makes an erroneous application of the law of agency, and (2) that its construction of the language used by counsel of defendant in reserving his right to object to a settlement of the statement on motion for a new trial is clearly unwarranted.
*4761. In support of the first contention counsel says that the statement in the opinion that “one dealing with a supposed agent must ascertain at his peril whether in fact the supposed agency exists,” embodies a principle not applicable to the facts of this case, because Miss Bennett having earlier in the year actually been the clerk of Mr. Gormley, counsel was entitled to treat her as still in the employ of Mr. Gormley until notified of her discharge. He cites sections 3150 and 3151 of the Civil Code, which lay down the rule that an agency is effectively terminated or the power of the agent revoked as to third persons only when notice has been given to them. These sections are but declaratory of the common-law rule, but they have no application to this case.
Miss Bennett was never the agent of Mr. Gormley for any purpose, so far as the record shows, except to receive service of papers while she was in his employ and in his office or in charge of it. She had no power to enter into stipulations for him for any purpose, and, under the express terms of the statute pointing out how constructive service may be made (Code of Civil Procedure, section 1831), she had not any authority whatever except during office hours, or, at any rate, while she was engaged in her duties in the office. Strictly speaking, she was, under the statute, but the passive agent by virtue of her employment to receive and acknowledge service in the office. She could not do anything actively to bind her employer. At the time of the alleged service she was not in the office nor in charge of it. Therefore, under any circumstances, her power to bind Mr. Gormley, if it. existed at all, existed by virtue of some other relation than her employment as his clerk. So that, when Mr. Cooper came to deal with her in the “Democratic headquarters,” in another building across the street, he did so with full knowledge that she was not Mr. Gormley’s agent for the purpose of the business then in hand, unless specially authorized to transact it, and therefore he was bound at his peril to ascertain whether in fact she was so authorized.
*477Again: It is contended that the construction thus given section 1831, supra, is entirely too narrow and technical, and that the phrase “by leaving the notice or other paper with his clerk therein,” should be construed to mean “by leaving the notice or other paper with a clerk employed by him. ’ ’ By the plainest rule of construction we think the phrase must be given the meaning we have given it in the original opinion, for evidently the purpose of the statute is that when service is made upon a clerk, the paper served must be left in the office and not elsewhere. This seems so clear as to leave no room for controversy.
2. As to the second contention, we deem it unnecessary to add anything to what has already been said. The construction of the language of the order of November 7th and of the statement of reservations accompanying the amendments, we think is fair and reasonable, and excludes the idea of waiver by Mr. Gormley or his ratification of anything done by Miss Bennett. A rehearing is denied.
Denied.
Mr. Justice Milburn and Mr. Justice Holloway concur.