den Ry. Co. v. Wright, 31 Or. 150, 49 Pac. 975; Connally v. Lyons, 82 Tex. 664, 18 S. W. 799, 27 Am. St. Rep. 935; Roger Williams Nat. Bank v. Groton Mfg. Co., 16 R. I. 504, 17 Atl. 170. The averment that the defendant "was only liable as such trustee" is limited, however, by the phrase, "and only to the extent of the pro rata share of the proceeds," thus making the concluding clause of that part of the answer mean that Kennedy was not responsible for the payment of any sum beyond the pro rata share of the proceeds, but to that extent he was personally liable.

*

That the trust agreement expressly authorized Kennedy to purchase new stock is unimportant, for he was directed to continue the management of the saloon, and that grant of general power necessarily carried with it the right to purchase such reasonable amount of liquors, cigars, etc., as were required for that purpose. The statement in that part of the answer quoted, that "the plaintiff herein * fully understood that the defendant was trustee of said such going concern, fully understood that the defendant was trustee of said saloon business for said Carns and said creditors," is immaterial, for if Kennedy proclaimed to every person whom he saw that he was trustee, and authorized to maintain the saloon as a going concern, the announcement would not relieve him from personal liability upon any contract that he might make "as trustee," unless there was an express agreement that he should be exempted from accountability.

Another paragraph of the answer, referring to the time between June 19, 1912, when Kennedy was appointed trustee and February 25, 1915, when he was discharged, reads:

"That during said interim, this defendant as such trustee purchased from this plaintiff liquors, goods, wares and merchandise of the value of $937.77, and paid out and disbursed said plaintiff therefor the full sum of $616.54, which was pro rata the amount paid and disbursed to other creditors of said defendant as such trustee

for the goods so supplied to keep and maintain said business as such going concern.'

Construing this paragraph in connection with the one hereinbefore quoted, it will be seen that these averments are to the effect that pursuant to the terms of an agreement made with Cohn for his principal, though the defendant "as trustee" was never personally liable for more than a pro rata share of the value of the goods which he purchased from the plaintiff in order to continue the saloon business, he was not, when the answer was filed, indebted to the corporation in any sum because he had paid it the amount due under

the terms of the contract.

This action was brought to recover the difference between $937.77, the value of the goods sold and delivered, and $616.54, the sum paid on account thereof. In alluding to such remainder, a clause of the answer reads:

"That the said sum of $321.23 sought to be re

as aforesaid, and defendant does not owe the same or any part thereof."

An ample construction of these averments induces the conclusion, which is to be obtainer from the final expression of the facts thus set forth, that while the defendant was "only liable as such trustee, and only to the extent of the pro rata share of the proceeds thereof," he was not personally liable for any sum in excess of such ratable proportion.

The most liberal interpretation of the allegations of the answer that can possibly be demanded by section 85, L. O. L., will not justify the deduction that defendant's counsel pointed out a better writ, or suggested that the relief demanded in the complaint should be denied because this action was not brought against Kennedy "as trustee," or Carns as cestui que trust, thereby manifesting an intention to plead in abatement, as would seem to be indicated from the following excerpt taken from the majority opinion herein:

"If Kennedy is not liable personally, then the instant action must fail because it is prosecuted against him personally."

A text-writer in commenting upon this legal principle observes:

"In a court of law the trustee is the absolute owner of the estate, and he can exercise all the powers of ownership; he can sue and be sued, even though the cestui que trust is dead, and must act in many respects as the owner, and proprietor; but in equity the cestui que trust so he must be treated by others as the sole is the owner, and the question in equity is, how far the trustee can act without exceeding his powers, and rendering himself responsible to the cestui que trust." Perry, Trustees (6th Ed.) § 475.

Kennedy was a trustee of an express trust. L. O. L. § 29. As such he held the legal title to the property that had been assigned to him, and for any infringement of his right of possession or of property he could have maintained an action at law in his own name. Thus in Trustees M. E. Church v. Adams, 4 Or. 76, 89, Mr. Justice Thayer, in speaking of a person so appointed, remarks:

"Adams has the legal title, and a full and complete remedy may be had without bringing any of the other parties who have participated in the transaction referred to before the court."

See, also, United States v. McCann, 40 Or. 13, 17, 66 Pac. 274; Wright v. Conservative Investment Co., 49 Or. 177, 179, 89 Pac. 387; Kollock v. Bennett, 53 Or. 395, 401, 100 Pac. 940, 133 Am. St. Rep. 840. The converse of this rule is true, and a trustee of an express trust, like an administrator or executor, can be sued individually on contracts made by him on a new and independent consideration. 2 Bates, Plead. Prac. Parties & Forms, 1597; 30 Cyc. 92. As the contract of sale herein was made with Kennedy after he was appointed trustee, an action at law could have been maintained against him individually. Taylor v. Davis, supra.

The defense herein is not based upon the postulate that this action should be defeated

The legal proposition thus announced has been sanctioned in the cases of Connell v. McLoughlin, 28 Or. 230, 234, 42 Pac. 218; Harrisburg Lmbr. Co. v. Washburn, 29 Or. 150, 44 Pac. 390; Baker v. Seaweard, 63 Or. 350, 127 Pac. 961; Portland v. American Surety Co., 79 Or. 38, 153 Pac. 786, 154 Pac. 121; Nicholas v. Title & Trust Co., 79 Or. 226, 154 Pac. 391, Ann. Cas. 1917A, 1149. In the case at bar no evidence of Cohn's former dealings having been offered as tending to show the plaintiff had held him out as possessing sufficient authority to make such an agreement as is alleged in the answer herein, the defendant could not have been justified in believing the agent was empowered to accept a pro rata compensation for the goods ordered. A party undertaking to hold a principal liable for the disputed acts of an agent must offer proof tending to establish either that requisite authority had been conferred, or conduct on the part of the principal constituting an estoppel, or his ratification of the unauthorized agreement. Rumble v. Cummings, 52 Or. 203, 95 Pac. 1111. There can be no ratification of the unwarranted act of an agent, unless the principal had knowledge of the material facts relating to the transaction and approved them. 2 C. J. 476; Mechem, Agency (2d Ed.) § 393; Sorenson v. Smith, 65 Or. 78, 86, 129 Pac. 757, 131 Pac. 1022; 51 L. R. A. (N. S.) 612, Ann. Cas. 1915A, 1127; Toomey v. Casey, 72 Or. 290, 295, 142 Pac. 621; Cranston v. West Coast Life Ins. Co., 72 Or. 116, 142 Pac. 762; United States Nat. Bank v. Herron, 73 Or. 391, 144 Pac. 661, L. R. A. 1916C, 125; Grice v. Oregon-Wash. R. N. Co., 78 Or. 17, 150 Pac. 862, 152 Pac. 509; Russell v. Erie R. Co., 70 N. J. Law, 808, 59 Atl. 150, 67 L. R.

A. 433, 1 Ann. Cas. 672; Lemcke v. Funk & Co., 78 Wash. 460, 139 Pac. 234, Ann. Cas. 1915D, 23. No evidence was offered tending to show the plaintiff had any knowledge that its agent had agreed to accept a pro rata compensation for the goods ordered by the defendant. There was, therefore, a failure on the part of the defendant to prove any authority conferred by the plaintiff upon Cohn to make such a contract as is alleged in the answer, a neglect to show that in other instances the plaintiff had held out the agent as having such authority so as to create an estoppel, and a want of proof of plaintiff's knowledge of material facts so as to constitute a ratification.

Pac. 341. The latter method of creating an estoppel by an inference of authority is illustiated by the decision in Roane v. Union Pac. Life Ins. Co., 67 Or. 264, 135 Pac. 892, where a promissory note purporting to have been given by an insurance company in settlement of a claim against it by an agent who represented he had authority to execute the negotiable instrument, and there being no evidence that the claimant had any knowledge of a limitation of the agent's authority, it was held that the question of such authority was properly submitted to the jury under proper instruction in respect to the grant of power. Another case cited by defendant's counsel is that of Golding v. Merchant Co., 43 Ala. 705, where it was ruled that if a principal, by his declarations or conduct, authorized the opinion that he had given more extensive powers to the agent than were in fact conferred, he should not be permitted to avail himself of the imposition. At page 719 of the opinion in that case it is said:

"The agency as claimed by the plaintiff was establish it. The sufficiency of the evidence was controverted, and there was evidence tending to a question for the jury, under appropriate instructions from the court."

ing to show an estoppel on the part of the In that case testimony was received tendprincipal. In Liddell v. Sahline, 55 Ark. 627, 17 S. W. 705, it was decided thať a general agent with power to buy might bind his principal by purchases within the scope of his authority, though in violation of specific instructions of which the seller had no notice. In that case the evidence was sufficient to be submitted to the jury on the question of the agent's authority, though transgressing particular directions of which the seller had Swinnerton v. Argonaut L. & D. Co., 112 Cal. no notice. Of similar purport is the case of 375, 44 Pac. 719. In Babcock v. Deford &

Co., 14 Kan. 408, it was ruled that where an agent, the actual extent of whose authority was unknown, made a sale of his principal's goods upon certain conditions within the ordinary scope of the agent's authority, the principal could not thereafter affirm the sale and reject the condition without the consent of the purchaser, even though such conditions might be outside the actual authority of the agent. At page 411 of the opinion in that case it is said:

ance.

"If the plaintiff accepted the contract of his agent, he must accept it as a whole, and cannot accept that which suits him and reject the baltations of his agent, bound by the contracts he The principal is bound by the represenmakes within the apparent scope of his authority."

If the testimony in that case had disclosed that the principal, with a knowledge of all

contract undertaken to have been made by his agent, such approval would have amounted to a ratification of the entire agreement,

applied.

The remaining case cited by defendant's counsel is that of Banks Bros. v. Everest, 35 Kan. 687, 12 Pac. 141, where it was declared that a principal was bound by the acts of his agent within the scope of his authority, and that the principal was also responsible for the unauthorized acts of the agent where from the evidence received it appeared that the conduct of the principal justified a party dealing with the agent, in believing he was acting within and not in excess of the authority conferred upon him. The legal principle thus announced is compatible with all the decisions on that subject.'

The testimony received at the trial shows that the defendant, though trustee for Carns, was also engaged with a partner in conducting for the firm a saloon at Medford, Or., and that Kennedy's financial standing was such that he could, upon his own account, have secured from wholesale liquor dealers goods to the value of most any reasonable amount, and that the plaintiff had, prior to such assignment, sold and delivered goods to that firm. While Cohn may have been authorized in other instances to solicit, in behalf of his principal, liquors, etc., he must necessarily have been empowered to negotiate sales of like goods to such customers as Kennedy. The implied authority of a traveling salesman is to take orders for the sale of his principal's goods, payable is cash on delivery or within a reasonable time. To hold a principal liable upon a contract alleged to have been made by his traveling salesman, whereby only a portion of the purchase price of goods might possibly be paid, in full satisfaction thereof, in the absence of any proof on the part of the purchaser that the agent possessed real or apparent authority to conclude an agreement to that effect, is to render a recovery by a wholesale house of its demand dependent upon the oral testimony of the purchasers of their goods after they are delivered.

Rules of the common law ought so to be formulated and applied by courts as generally to dispense substantial justice to all parties. However honest a commercial traveler may be in soliciting orders for the sale of his principal's goods at schedule prices, even to a purchaser who is financially responsible, the actual contract to that effect which has been concluded can be set aside and a simulated agreement substituted upon the oral testimony of purchasers after receiving the goods, without offering any testimony tending to show any real or apparent authori

Such practice will serve to eliminate commercial travelers, or to require that customers solicited by them subscribe their names to a written order for goods, which memorandum when accepted by wholesale houses contains all the requirements of a valid agreement, thereby excluding oral testimony tending to vary, alter, or contradict the terms of the writing.

While the principal is held liable for the contracts made by his agent if he acts within his real or apparent authority, evidence thereof should be given when the power of a commercial traveler is controverted, before the principal is rendered liable. This is as far as the rule ought, in reason, to be extended, and to hold that the principal is liable when the agent did not communicate to him an offer made by a contemplated purchaser, though it was to the interest of the commercial traveler to withhold such information, is to carry the doctrine to the very limit of unreasonableness.

In my opinion errors were committed in refusing to direct a verdict for the plaintiff, and in charging the jury as stated. For these reasons the judgment should be reversed.

Evidence that father, on death of child's mother, and after statement of her sister, "Give the child to me and I will raise it," said, "You shall have it," does not justify the court, in habeas corpus on petition of the father, in ignoring his natural rights.

3. HABEAS CORPUS 99(1)-CUSTODY OF INFANT RIGHTS.

Where the father, on death of child's mother, and after statement of her sister, "Give the child to me and I will raise it," said, "You shall have it," he could revoke such agreement. 4. WORDS AND PHRASES-"IN LIKE MANNER" -"LIKE."

When the statute says that an appeal in a proceeding by habeas corpus shall be "in like as in an action," it means

manner

*

*

that the mode of appealing is the same as the mode of appealing in an action at law (per Harris, J., dissenting in part, citing Words and Phrases, Like; Like Manner).