As we think that the contention made that the testimony was not sufficient to support the finding that Brommer, as appellant's agent, had authority to bind it by the contract Sanders claimed Brommer made with him should be sustained, it will not be necessary to consider the further contention made by appellant that the judgment is erroneous because it was not shown how much of the lumber, if any, purchased by appellant of the Texas Lumber Manufacturing Company was lumber covered by that contract.
The burden of proving that Brommer had the authority claimed for him was on the bank. The testimony heard went no further than to show that Brommer was an inspector and buyer for appellant, and that in November, 1911, he, acting for appellant and in its name, contracted with Sanders in writing that appellant would act for him (Sanders) in the sale on commission of the output of a sawmill he was then operating. As it was not shown that appellant acted upon or in any way recognized the contract as its own, or even that It ever knew of the existence thereof, the fact that Brommer made it was without probative force on the issue as to whether he was authorized to make the contract In question here or not. The finding of the jury, therefore, must be treated as without other support than that furnished by the proof showing Brommer to have been an inspector and buyer for appellant.
It was not pretended that the authority claimed for Brommer could be referred to a custom or usage binding upon appellant. The contention was, it seems, that appellant should be held to be bound by the contract in question because it was incidental to authority it conferred upon Brommer when it employed him to inspect and buy lumber for it. It is true that every express power conferred by the principal upon his agent carries with it, as an incident, "the authority to do whatever is usual and necessary to carry into effect the principal power." 1 Am. Eng. Enc. Law, p. 997; 1 Clark Skyles on the Law of Agency, § 209. But the principle has no application to the facts of this case. It did not appear that it was either usual or necessary for a person employed, as Brommer was, to Inspect and buy lumber, to employ at his principal's expense another or other persons to assist him in the discharge of his duties.
The judgment will be affirmed In so far as it is in favor of the bank against Sanders. In so far as it is in favor of the bank against appellant it will be reversed, and judgment will be here rendered that the bank take nothing by its suit against appellant. *Page 538