The record-union., 1891-02-11
SUPREME COURT DECISIONS.
Filled January 80, 1s9l.l

Filled January 80, 1884,
Appeal from Superior Court, San Diego
County-George Puterbaugh, Judge.
For appellant, Deakin d Story, Thos. J.
Capps.
For respondent, Shaw & Holland.
DEPARTMENT TWO.
HARRIS, Appellant.
VS.. ooo
SAN DIEGO FLUME Co., ~. io'0'0
Respondent.
This was an action to recover 1000 as
brokerage for negotiating contract. The
complaint contained two counts, but the
plaintiff elected to go to trial upon a
Qud,stu1t nieruit. The trial court gave
judgment for the defendant, and the
plaintiff appeals.
The principal question discussed by
counsel relates to the authority of the per-
son who employed the plaintiff.
The defendant was corporation ITO
construct and operate tiume for the
transmitting of water" At the period in
question its tlume had not been con-
structed. The engineering work was be-
ing done, and the business OF acquiring
rights of way, etc., was being attended to.
In the beginning of August, 1856, the
company sent its Superintendent, one w.
T.. Robinson, to San Francisco to negoti-
ate Il contract for the construction of the
fiume. He employed the plaintiff as
broker to find a contractor, and through
the plaintiffs s eXertions a suitable person
was found. The claim is for compensa-
ton for services as such broker.
/. The defendant cannot be held on the
ground of ostensible or apparent author
ity. There is evidence to the effect that
in the county of San Diego, Robinson was
permitted by the company to do things
outside of his ordinary duties as Superin-
tendent. And the plaintiffs son, who
company, testified that on the eve of Rob-
inson's departure for San Francisco, the
President told him that Robinson "had
full authority" to enter into contracts
(tol 13D. This latter evidence is contra
dicted fol. 1S0-l). The former is not. But
neither is ground for decision in favor
OF plaintiff on the theory of an ostensible
or apparent authority. For it does not
appear either that the alleged statement
of the President was communicated to the
plaintiff, or that he was aware OF the lati-
tude which had been permitted Robinson
in San Diego. It,may possibly be sur
missed that he had knowledge of the cir
cumstances (see fol. 1867 and fol. SD; but
the fact is not stated, and mere surmise
isnot sufficient. 'tOstensible authority is
such as a principal, intentionally or by
want of ordinary care, causes. or allows q
third person to believe the agent to pos
sess." Civil Code, Sec. 23l7.)
IDere are TWO essential features OF an
authority of this character, viz: The party
must believe that the agent had author
ity, and such belief must be generated by
some act or neglect of the person to be
held. a belief founded on the agents
statements is not sufficient; for party
has no right TO take the agents word for
the existence of his authority. Ia the
case before us, as above stated, it does not
appear that the acts of the company which
are supposed to have been sufficient TO
justify belief in Robinson's authority
were known to the plaintiff; and if not,
they could not have generated in his
mind any belief on the subject of the
agency.
There may be other reasons why the
plaintiff cannot recover on this ground
but the foregoing is sufficient.
2. There was no actual authority. either
express or implied. The measure of the
agents authority was the following reso-
luton of the Board of Directors OF the
company:
"Pe8oioed, That w. E. Robinson be
authorized to proceed to San Francisco
and enter into negotiations with con-
tractors and others for work on the line of
the flume, in his discretion, subject to the
approval Of this board; also, that he be
authorized to enter into negotiations with
capitalists for the purchase of not ex-
ceeding S500,000 in the bonds of the COM
pany.' (Fol. 60-1.)
Nothing appears to have been done by
the plaintiff in relation to the disposition
of the bonds. His claim is for finding n
contractor who was willing to enter into
a contract for the building of the tiume.
In the language of appellants counsel,
''tor the peculiarly difficult and rare Scrv-