concurs in part and-dissents in part:
I concur as to the majority holding that Robert C. Brown was guilty of.fraud and that as to him the trial court’s judgment should be reversed. I would not, however, affirm the dismissal of Inglis Mortgage Company for reasons which hereinafter appear.....
My reading of the. entire record .and examination of the exhibits fails to disclose that Brown at any time rented the adjoining space from Inglis. The undisputed evidence is. that he was put in Inglis’s office by its then President, as Brown testified,, with the idea of Brown becoming Inglis’s Denver manager and to seek mortgage loan prospects. There is no dispute that he officed in a suite formerly used by Inglis’s personnel who had recently moved to an adjoining suite, and that, Inglis still had some of its furniture in the rooms occupied by Brown. Brown obviously had a free run of Inglis’s entire premises, even using its phones and secretaries. Thus Inglis made it possible for him to perpetrate the fraud on Bemel.
I also do not agree, as stated by the majority, that “There is no testimony by the Bemels or Brown that there was any direct contact on the loan by Bemel Associates with Inglis.” The fact is, and the record so discloses, that both Brown and Donald Bemel testified that when they flew to Minnesota, by happenstance they met Mr. H. Sanford Weaver, Inglis’s President, at the Denver airport. Further, that Brown introduced Bemel to Weaver. Part of Brown’s testimony in this regard was: . ...
“Q I assume you left from Stapleton Airport in Denver?
“A Yes.
“Q. Upon your arrival at Stapleton and prior to.your departure for' Rochester, is that when you met Mr. Sanford Weaver?
“A Yes. We-met him at the airport. ■ ■
*422“Q Did. you introduce Mr. Don Bemel to Mr. Weaver at that time?
“A Yes. I did.
“Gj What was said by Mr. Weaver to you in Don’s presence, if anything?
“A I talked to Weaver. I did introduce Don Bemel as being one of the Bemels of Bemel Associates, Incorporated, and that they were in the process of working out plans and specifications to erect a 100 room motor hotel to be erected in Rochester, Minnesota, and that we were going to go to Rochester this particular afternoon to obtain the' necessary papers and see if we couldn’t put the deal together for our mutual benefit.
“THE COURT: Whose mutual benefit?
“THE WITNESS: The Corporation’s and Bemels.'” Part of Bemel’s testimony as to this facet of the case was: ‘ ■
“A Yes. He said Mr. Weaver was to make'a trip'-to Denver to discuss the setting up of Mr. Brown as Pres-' ident of the Ingli's Mortgage Company office. I also had occasion to meet Mr. Sanford Weaver' at Stapleton Airfield prior to our departure to Rochester.
“Q You met with Mr. Weaver personally?
“A Yes, I did, prior to our departure.”
The record discloses that following Weaver’s introduction to Bemel; Brown and Weaver stood a short distance away from Bemel and engaged in some discussion. Brown’s testimony further reveals that he and Weaver had later been in New York City together attempting to procure the loan.
Also, I do not agree that for estoppel to apply'here, as stated by the majority, “* * * there must first of all be evidence that Brown was ostensibly an agent of Inglis with apparent authority and that the alleged principal had knowledge of a reckless indifference as to the conduct of the so-called agent.” (Emphasis added.) I so state because I do not agree that Bemel Associates had to show that Brown was Inglis’s agent or ostensible *423agent. Under the facts here all the plaintiffs in error had to do was to show that Inglis was estopped to deny the agency. This they did in a rather classic manner. The rule which I deem applicable to hold Inglis liable is not only the one quoted in the majority opinion from Chamberlain v. Poe, 127 Colo. 215, 256 P.2d 229 (1953), but must and should have coupled to it the further rule set out in Burck v. Hubbard, 104 Colo. 83, 89, 88 P.2d 955, 957-58 (1939) where we stated:
“* * * The parties agree, and it is the law, ‘That when one of two innocent persons must suffer from the acts of a third he must suffer who put it in the power of the wrongdoer to inflict the injury.’ * *
Accord: Panhandle Pipe and Supply Co. v. Pressey & Son, 125 Colo. 355, 243 P.2d 756 (1952); Gordon v. Pettingill, 105 Colo. 214, 96 P.2d 416 (1939).
In my view Inglis’s conduct showed that it either had knowledge as to Brown’s representations to Bemel Associates or at least its conduct showed a reckless indifference as to how Brown acted while operating from its office with its consent and knowledge. For these reasons I would reinstate the claim against Inglis and order the trial court to enter judgment thereon in the sum of $7,000 plus interest and costs in favor of Bemel; and also, I would order the reinstatement of Inglis’s cross-claim and the entry of judgment thereon in its favor against Brown.