Johnson v. Evans , 134 Minn. 43 ( 1916 )

SOHALLER, J.

The defendant Evans was doing contract work for the Milwaukee road in the vicinity of Big Stone City, South Dakota. He carried an account with the Gold & Company State B'ank of Big Stone City. Until July 7, 1914, one Emerson was Ms bookkeeper. On July 7, 1914, Emerson was discharged. On July 9, 1914, he drew three checks on the bank in the name of the defendant by himself as agent. The bank refused payment. Plaintiff owns the checks, and brings this action to recover their amounts. The court directed a verdict for the defendant, and the plaintiff appeals from the order denying his motion for a new trial.

The plaintiff’s right of recovery is based upon the implied authority of Emerson to draw the checks. He had no express authority. The right of recovery because of apparent authority or upon the ground of estoppel was eliminated at the trial. Upon the motion to direct a verdict it was conceded of record that the plaintiff must recover upon Emerson’s implied authority or not at all. ' Implied authority is actual authority circumstantially proved. Apparent authority is not actual authority. “Implied authority is that which the principal intends his agent to possess, and which is proper, usual and necessary to the exercise of the authority actually granted. * * * Apparent authority is that which, though not actually granted, the principal knowingly permits the agent to exercise or which he holds him out as possessing.” Dispatch Printing Co. v. National Bank of Commerce, 109 Minn. 440, 124 N. W. 236, 50 L.R.A. (N.S.) 74. “And because one dealing with an agent may show actual authority in him, — that is, such authority as the principal in fact intended to vest in the agent, although such intention is to be shown by acts and conduct, rather than by express words, — without showing that he (the person dealing with the agent) knew when he dealt with him of the acts and conduct from which the intention is to be implied, it was competent for defendant to show the course and manner of conducting business in the office of plaintiff, so far as the bookkeepers and cashier had charge of it. * * * Such a manner of conducting the business in the office might have been proved as would have justified the jury in finding that the officers must have known of the custom of the bookkeeper and casíiier in regard to checks; and had that been found, and that it was acquiesced in by plaintiff, the intention to vest authority might have been implied.” Columbia Mill Co. v. National Bank of Commerce, 52 Minn. 224, 53 N. W. 1061.

Granting that at one timé Emerson had implied authority to issue the checks, such authority did not survive his discharge. The evidence concltisivoly sliows that he was discharged on July 7, and on that day his actual authority ceased. When he wrote and put the checks in circulation on July 9, he was without authority in fact.

A number of errors are assigned upon rulings on evidence. We find nothing calling for specific mention.

Order affirmed.