On Petition for Rehearing
PERRY, J.The plaintiffs have petitioned this court for a rehearing in the above matter, stating, first, that “The Court erred in reversing the judgment of the trial Court with instructions to enter judgment for the defendants, for the reason that the amount of the judgment entered in the trial Court included the sum of $1,988.19, which sum was acknowledged by the defendants, in the pleadings, on the trial and on this appeal, and by the Court itself, to be owing to the plaintiffs”; and second, that “The Court erred in holding that there was no evidence to sustain the trial court’s finding that the labor and materials in issue were furnished by the plaintiffs at the special instance and request of the defendants for the reason that there was substantial evidence to support the trial court’s finding of fact.”
In reversing the judgment with instructions to enter judgment for the defendants as to the item of the sum of $1,988.19 we acknowledge our error, and a judgment for the above sum should be entered by the trial court, but the balance of the claim of $4,563.01, *387which contained that portion of the judgment appealed from, should be denied.
As to the second claimed error, the plaintiffs allege that there was evidence to sustain the trial court’s finding that labor and materials in issue as to the balance of the judgment sought were furnished at the special instance and request of the defendants and that we overlooked and failed to consider the evidence introduced by the plaintiffs that the agent of the defendants, Rowland, had apparent authority to alter the contract previously entered into between the parties to include a two-coat painting job instead of the one-coat job provided in the contract.
We stated in our original opinion that there was no evidence of Rowland’s authority. Perhaps our opinion would have been more lucid had we used the words “apparent authority” for there was equally no evidence of actual authority. “Apparent authority” is the holding out of the agent to have certain authority and after a party dealing with the agent has relied upon this appearance of authority in theory an estoppel arises to deny the authority of the agent to do the particular act or acts in controversy. 2 Am Jur 86, Agency, § 104. The evidence relied upon by plaintiffs is to the effect that prior to entering into the written contract the defendants stated, in effect, that they would have a man on the job authorized to order a priming of any of the buildings that needed priming. There is not one bit of evidence that Rowland was to be the agent of the defendants for the purpose of altering the contract subsequently entered into. Apparent authority does not arise where the lack of the agent’s authority is known, or should be known, to the party dealing with the agent. While this exact language is not used in our opinion, in Graef v. Bowles *388et al., 119 Or 498, 248 P 1090, it is the rule of law there relied upon.
Mautz, Souther, Spaulding, Deneche $ Kinsey, and Arno II. Deneche and John R. Satin, of Portland, for the objections. King, Miller, Anderson, Nash <& Yerhe, of Portland, contra. Before Latourette, Chief Justice, and Warner, Tooze and Perry, Justices.The petition for rehearing is denied, and our previous opinion adhered to, except as modified by entering judgment for the plaintiffs for the sum of $1,988.19, admitted by the defendants to be due the plaintiffs.
On respondents’ objections to appellants’ Cost Bill,
PER CURIAL!.The appellants include in their statement of costs and disbursements “Bond on appeal, $140.00” and “Renewal of bond on appeal, $140.00”. The respondents object thereto as follows: “Appellants are not legally entitled to recover as costs on appeal the premium for undertaking on appeal, supersedeas or other”.
Section 101-1402, OCLA, subd. 5, now ORS 747.100 (2), authorizes the recovery “of a sum paid * * * for executing any bond * * S"V Such sum shall not exceed one percent of the amount of the bond i. * * during each year the same was in force”. The supersedeas bond filed in this case, and running for a period of more than one year, secured a contingent liability thereunder of approximately $6,000. *389One percent thereon for a period of two years, as allowable under this statute, would permit a recovery in the sum of $120. Gray v. Hammond Lumber Co. et al., 113 Or 570, 594, 232 P 637, 233 P 561, 234 P 261.
The respondents also object to the amounts set forth as disbursements relative to the printing of the abstract of record, printing of appellants’ brief and reply brief.
The amount allowable for printing is $2 per page, including the cover. Rule 19, § 2, Rules of the Supreme Court.
The costs are retaxed and allowed to the appellants as follows:
COSTS (Statutory attorneys’fee)................ $ 15.00
DISBURSEMENTS:
Premium on the bond................................ 120.00
Printing abstract of record........................ 46.00
Printing appellants’ brief........................ 102.00
Printing appellants’ reply brief............ 46.00
Transcript of testimony............................ 143.00
Transcript on appeal................................ 6.00
Appellants’ appearance fee, Supreme Court ...................................................... 20.00
Trial fee, Supreme Court........................ 6.00
Total.................................................................... $504.00