asserts, that an agent cannot trade his principal's credit for his own advantage, but where the agent represents that he has paid the principal or has credited the principal with the amount on the agent's claim against the principal, the debtor has a right to rely and act thereon. This is especially true where the agent is a collecting agent and has been held out as such. The receipt in this case came from one who was accustomed to collect and give receipts and his statement that he had paid his principal is binding on the principal.”

The application of the rule of ostensible agency or authority depends primarily upon the acts or conduct or words of the principal, and not upon the acts or conduct or words of the agent. The rule is that a principal will be bound by those acts of his agent which he has given other persons reason to suppose are done by his authority, but, as suggested, such authority arises by implication and can only spring from the words, acts, or conduct of the principal.

The rule, which involves the doctrine of estoppel, and which, when invoked in proper cases, stands as a shield against the working of unjust injury to third parties, is stated as above, and as so stated applied in the cases cited by the attorneys for the defendant as in purported support of their theory of the facts of this case, viz.: Leavens v. Pinkham & McKevitt, 164 Cal. 242, 248, [128 Pac. 399]; Robinson v. American Fish & O. Co., 17 Cal. App. 212, 219, [119 Pac. 388]; Stevens v. Selma Fruit Co., 18 Cal. App. 242, 250, [123 Pac. 212]; Spoon v. Sheldon, 27 Cal. App. 765, 770, [151 Pac. 150]; Anglo-Californian Bank v. Cerf, 147 Cal. 393, [81 Pac. 1081].

There is, as we view the record, absolutely no evidence showing that the plaintiff by any act or conduct or words spoken held out to the public or to the defendant that Conner was authorized for the company to settle any of the accounts of the plaintiff in the manner indicated by the tripartite agreement. The fact that Conner was authorized as manager of the company to receive money for it from its patrons, and execute and deliver receipts therefor in its name, cannot reasonably be said to warrant or justify the inference or the conclusion that he (Conner) was authorized to adjust or settle his own personal indebtedness to a debtor of the company by substituting himself as the debtor of the company in the place and stead of the party owing the debt. The authority to exe

cute a receipt for money paid to him for the company does not imply authority to make settlements with debtors of the company on a basis different from that prescribed by the company's contracts with its debtors, or to deliver receipts for money in the company's name when none is actually paid.

Nor does the fact that Conner was authorized to accept second-hand pianos as in part payment for a new piano sold through him by the company imply authority in him to receive in payment of the debts due to the company property other than coin. The company's business is that of selling pianos, and it is of so common a practice for piano dealers to take and make some allowance for an old instrument when making a sale of a new one that it can justly be declared to be a matter of common knowledge that such is the established custom, and that the taking of an old piano as part payment for a new instrument of that character is one of the recognized common practices of the business of selling pianos, Hence, we repeat, the circumstance that, in selling a piano to the defendant, the plaintiff accepted from her a secondhand piano in the trade or as in part payment for the new piano, is not to be regarded as evidence from which the defendant or her husband or the public generally was justified in forming the belief or even the remotest impression that Conner was vested with the authority as the plaintiff's agent to cancel or satisfy the defendant's indebtedness to the company by assuming himself, for a consideration entirely personal to himself, personal liability for such indebtedness.

As to the second point made by the defendant, we can find no occasion for holding that the plaintiff forfeited its right to retake possession of the piano in question because it made demands upon the defendant after the commencement of this action for the payment of installments under the contract and in which she was in arrears. The contract between the plaintiff and the defendant was for the sale of the piano-a mere conditional sale-and the title to the instrument remained in the plaintiff. As the supreme court said, in considering a contract precisely similar to the one here, in Hegler v. Eddy, 53 Cal. 597: "The rules of forfeiture do not seem to have any application to the question of the right to the possession of the property. Forfeiture involves both the idea of losing property by a delinquent party, and the transfer of it to another without the consent of the delinquent. Here the owner

ship was not transferred; for it remained in the plaintiff and his assignors; nor was the right of possession transferred; for the defendant had only such right to the possession as the contract gave, which was merely the right to the use and possession until default should be made in the payment of installments. The plaintiff's right to the possession comes from his ownership of the property; and this right, while he remains the owner, is merely suspended, by virtue of the contract, until the defendant shall make default in paying the installments, and thereupon his right of possession ceases; but it cannot be said to be transferred to the plaintiff." (See Pacific Carbonator Co. v. Haydes & Son, 26 Cal. App. 607, [147 Pac. 988].)

The act of instituting this action by the plaintiff to regain possession of the piano constituted the exercise of its right of election under the contract to retake the instrument, and it would appear to be most unreasonable, even if the rules of forfeiture were applicable to such contracts as the one involved here, to hold it to be true, as a legal proposition, that the effect of submitting statements to the defendant showing the installments due and overdue would be to destroy the right of election already exercised. Of course, if the defendant had, after the commencement of this action, paid all installments due on demands therefor made by the plaintiff after the complaint herein was filed, then an entirely different situation would be presented. But there is no evidence that she did this or offered to do it.

For the reasons stated herein, the judgment is reversed and the cause remanded.

The appeal from the order denying a new trial is, as above declared, void, but to avoid any possible confusion which might arise from a failure to make any disposition thereof, the order is that said appeal be, and the same is hereby, dismissed.

Chipman, P. J., and Burnett, J., coucurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 11, 1917.

[Civ. No. 1801. First Appellate District.-November 15, 1916.]

CHARLES H. HUSBAND, Respondent, v. WILLIAM A. HUSSEY, Appellant.

CONTRACT-SALE OF STOCK-NUMBER OF SHARES-FINDING ON CONFLICTING EVIDENCE-APPEAL.-Where in an action to recover the value of ten shares of the capital stock of a certain corporation which, it was alleged, the defendant for a valuable consideration had agreed to deliver to the plaintiff, the evidence is in pronounced conflict as to whether or not the defendant had agreed to deliver to the plaintiff said ten shares, or any number of shares in excess of the ten shares which the complaint alleged the defendant had delivered, the finding of the trial court that the agreement called for the delivery of twenty shares is conclusive on the appellate court.

APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. N. D. Arnot, Judge presiding.

The facts are stated in the opinion of the court.

Robinson, Gillis & Sizer, and Robinson & Sizer, for Appel

lant.

Reed, Nusbaumer & Bingaman, for Respondent.

THE COURT.-This is an appeal from a judgment in the sum of one thousand dollars entered in favor of the plaintiff in an action for the value of ten shares of the capital stock of a certain corporation which, it was alleged, the defendant for a valuable consideration had agreed to deliver to the plaintiff.

The evidence adduced upon the trial of the case was directed chiefly to the issue raised by the defendant's answer as to whether or not he had agreed to deliver to the plaintiff any number of shares of the corporate stock in controversy in excess of the ten shares which the plaintiff's complaint alleged that he had received pursuant to his agreement with the defendant.

No point of law is involved in the appeal. It is grounded. solely in the contention that the finding of the trial court that the defendant had agreed to deliver twenty and not ten shares

of the stock in question is contrary to the preponderance of the evidence, which, upon that phase of the case, is in pronounced conflict; and we are requested by the appellant to weigh the evidence and consider the credibility of witnesses. This, of course, under the familiar rule, we cannot do.

The judgment and order appealed from are affirmed.

[Civ. No. 1848. First Appellate District.-November 16, 1916.] LOUIS HANKE, Respondent, v. JOE MARTIN, Appellant. LEASE INADMISSIBILITY OF ORAL EVIDENCE-RESERVATION OF RULING ON MOTION TO STRIKE OUT-LACK OF PREJUDICE.-Where in an action to recover a sum of money alleged to be due and unpaid under the terms of a written lease, the court reserved its ruling upon a motion to strike out certain evidence admitted over the plaintiff's objection of an alleged oral understanding made at the time of the execution of the lease that the rent was payable in advance, the defendant is not prejudiced by the failure of the court to thereafter make a direct ruling on the motion, where the lease was clear and explicit as to the term and rental, and the evidence therefore inadmissible as in contradiction of the terms of the written lease.

APPEAL from an order of the Superior Court of Fresno County denying a new trial. H. Z. Austin, Judge.

The facts are stated in the opinion of the court.

M. K. Harris, Thomas F. Lopez, and H. A. Savage, for Appellant.

Everts & Ewing, for Respondent.

RICHARDS, J.-This is an appeal from an order denying the defendant's motion for a new trial in an action brought to recover the sum of $1,310, alleged by plaintiff to be due and unpaid under the terms of a lease of certain premises. The record shows that upon the trial of the case the lease was introduced in evidence, from which it appeared that the defendant on June 4, 1912, leased two certain tracts of land, containing respectively 125 and 110 acres, from the plaintiff