Nord v. Boston & M. Consol. Copper & Silver Min. Co.

• Decision Date: 10 February 1906
• Citation: 89 P. 647,33 Mont. 464
• Parties: NORD v. BOSTON & M. CONSOL. COPPER & SILVER MINING CO.
• Court: Montana Supreme Court

89 P. 647

33 Mont. 464

NORD v. BOSTON & M. CONSOL. COPPER & SILVER MINING CO.

Supreme Court of Montana

February 10, 1906

On rehearing. Denied.

For former opinion, see 84 P. 1116.

BRANTLY C.J.

Appellant has submitted a petition for a rehearing herein, in which contention is made that the conclusions of the court are wrong, for the reasons (1) that it makes an erroneous application of the law of agency; and (2) that its construction of the language used by counsel of defendant in reserving his right to object to a settlement of the statement on motion for a new trial is clearly unwarranted.

1. In support of the first contention counsel says that the statement in the opinion, that "one dealing with a supposed agent must ascertain at his peril whether in fact the supposed agency exists," embodies a principle not applicable to the facts of this case, because, Miss Bennett having earlier in the year actually been the clerk of Mr Gormley, counsel was entitled to treat her as still in the employ of Mr. Gormley until notified of her discharge. He cites sections 3150 and 3151 of the Civil Code, which lay down the rule that an agency is effectively terminated or the power of the agent revoked as to third persons only when notice has been given to them. These sections are but declaratory of the common-law rule, but they have no application to this case. Miss Bennett was never the agent of Mr. Gormley for any purpose, so far as the record shows except to receive service of papers while she was in his employ and in his office, or in charge of it. She had no power to enter into stipulations for him for any purpose and, under the express terms of the statute, pointing out how constructive service may be made (Code Civ. Proc. § 1831) she had not any authority whatever, except during office hours, or, at any rate, while she was engaged in her duties in the office. Strictly speaking, she was, under the statute but the passive agent, by virtue of her employment, to receive and acknowledge service in the office. She could not do anything actively to bind her employer. At the time of the alleged service she was not in the office, nor in charge of it. Therefore, under any circumstances, her power to bind Mr. Gormley, if it existed at all, existed by virtue of some other relation than her employment as his clerk. So that, when Mr. Cooper came to deal with her in the "Democratic headquarters," in another building...