in a short time thereafter, less than a week, I on this contract, and request counsel that, if when she had them inspected and ascertained he has receipts for any amount in excess of the true condition, she immediately demanded the return of her money, which was refused; that she offered to surrender the bonds delivered, which were later mailed to the appellant and this suit brought to recover the money paid.

Complaint is made to the admission of the testimony of Bertha Anderson (a witness for the plaintiff), wherein she told the jury certain conversations between her and Anna Shepherd (the agent of the defendant, who secured the money), which conversation took place when the plaintiff, Hilda Larson, was not present. It is claimed that this testimony necessarily tended to prejudice the jury, and place the defendant at a great disadvantage. We find nothing in this contention, and think it was properly admitted as tending to prove fraud, also as tending to sustain the evidence of the appellee, as against the evidence of Mrs. Shepherd as to what the contract really was, and, in the light of the other testimony upon these questions, was proper to be considered by the jury.

this, they would be very glad indeed if he would advise them. They further state therein, "if they (the receipts) are signed for by our agent (Anna Shepherd), then, of course, the obligation is upon us to account for the same." Also they state in them they do not desire to take advantage of an innocent party and wish to be furnished dates of all receipts, etc. Another states that they hold Hilda Larson's signed application for these bonds "and herewith enclose copy of the same," a matter in dispute. The evidence clearly established the fact that Miss Larsón at no time signed the application. In the letter written after the institution of the suit they offer to make the appellee a loan upon the bonds as an adjustment of the matter in which they suggest its acceptance, stating it would save her the expense of paying the cost when the court has decided in their favor. The letters were competent, among other things, to show (a) that Mrs. Shepherd was the agent of the appellee; (b) that it received the greater part of the money; (c) that inconsistent and contradictory statements were made by the appellee; (d) that certain contentions were made by it in the letters under its alleged right to retain this money, which were not true.

The final error assigned "that the verdict of the jury and the judgment is contrary to the evidence" leads us to its examination to ascertain if there is sufficient evidence upon which the verdict can be based. We are of the opinion that there is, and without going into details concerning it, while it is conflicting upon the representations made and relied upon, when considered as a whole, there is sufficient evi

Other evidence complained of was the admission of five letters, which purported to be answers to communications sent to appellant by J. J. Sullivan as attorney for the appellee. The portions complained of are where in these letters set forth the fact that there was a controversy between the company and its agent, Anna Shepherd, as to the amount of money turned into the company by her for the bonds alleged to have been purchased by the appellee, in which counsel contend the defendant having admitted prior to the offer of these exhibits that the plaintiff had paid to the company $168, being all that she claimed, that after this admission it was unneces-dence to warrant the verdict as rendered. An sary for the defendant to introduce other evidence in respect to that fact, and its admission in the letters of the contention between it and its witness tended to prejudice the jury against the evidence of the witness Shepherd.

application was sent to the company for these bonds purporting to have been made and signed by the appellee. Her testimony is to the fact that she never had seen, signed, or heard of the application until it was produced in court. The evidence upon behalf of the appellant shows that this application was signed by one of its employés. If the appellee's evidence is to be accepted, which was a question solely for the jury, the bonds which she understood she was to get then contained certain conditions and certain obligations that by their language would give to her cer

There is no contention regarding the authority of Mr. Sullivan to represent the appellee. The letters were in answer to those of Mr. Sullivan, written the appellant concerning this entire controversy, and which tend to set forth fully the appellant's side of it. The letters admit that Mrs. Shepherd was the agent of the appellant. Two of the let-tain rights and privileges, but the bonds deters claim that only $140, and not $168 (as the appellee claims), was paid to it for the bonds. These letters further set forth the fact that it is the intention of the appellant to rely upon the conditions of the contract, as they claim it is, to wit, the bonds and the application therefor. They further ask time within which to adjust the matter, and offer to substitute other conditions (if satisfactory to the appellee) in lieu of those contained in the bonds delivered. In one of the last they

livered to her were not the kind or class of security, and did not contain the conditions it was represented to her they had embodied therein, of which fact she was ignorant; other facts shown at the trial were such that a jury might find that the agents of the appellee, through false and fraudulent misrepresentations, knowing such facts to exist, had intentionally secured the money of the appellee under such conditions.

No complaint is made of the instructions

trials have both been in her favor. We do not | Denver, and proposed to purchase a stock of think the last should be disturbed. The judgment is affirmed. Affirmed.

STEELE, C. J., and GABBERT, J., concur. at the latter place.

may not sit idly by, make no inquiry, and then hold the principal on the theory of an estoppel, without proof of a course of dealing with himself so long continued as to beget a legitimate reliance on the apparent possession of authority."

Undoubtedly the above correctly states the law, and is peculiarly applicable here. The burden was with Lapidus to prove authority in Jonas Saul to bind his brother Marcus. No testimony to that effect was introduced. No course of dealing was shown, or attempted to be shown, which even squints at authority in Jonas to buy goods for Marcus, anywhere or for any store, or at all, much less to buy for himself, Jonas Saul. Lapidus made no inquiry as to the authority of Jonas. It is wholly due to this failure that he suffers. There is no law that puts this loss, which was the direct result of the inexcusable neglect of Lapidus, on Marcus Saul, who is without fault himself, so far as the testimony shows.

chase in question, until payment was demand- | from what was done and that the plaintiff ed, when he denied any connection with the transaction, and all liability thereunder. Even if there was real or apparent authority in Jonas Saul to buy goods for the Pueblo store, by no stretch of the imagination can such authority be held to authorize a purchase of goods, on the credit of Marcus Saul, to be used to start a store at Florence for Jonas. Lapidus knew the precise situation better than any one; he knew Jonas Saul was not buying the goods for Marcus Saul; but on the contrary, that he was buying them for a store to be started by himself outside of Pueblo. Had he found Jonas responsible, no doubt the credit asked would have been given. When Lapidus found Jonas without rating, still anxious to sell the goods, he made the proposition to charge them to Marcus Saul, whom he had ascertained was good for the amount. With the facts before him, the plain legal duty was upon Lapidus to ascertain what authority, under the circumstances of the proposed sale, Jonas had to bind Marcus Saul for these goods. He should have made instant inquiry. This he utterly failed to do. It follows conclusively that if Lapidus finds himself now in an unfortunate plight, he is there through his own folly, and because of his failure to exercise ordinary business prudence and care to ascertain whether Jonas Saul had power to bind Marcus Saul, under the peculiar facts of this case, to pay the bill herein sued upon. Lapidus ought not to recover as a matter of common fairness, and certainly, under the law, he may not do so. On the pleadings and proof the court, of its own motion, should have instructed a verdict. It was error to deny the motion for a new trial, on the ground that the verdict is contrary to law and testimony.

In Witcher v. Gibson, 15 Colo. App. 163, 61 Pac. 192, the court says that appellant's contention was that:

There is no conflict in the testimony. The record is barren of proof, direct or inferential, to establish authority in Jonas, as agent, to bind Marcus in a transaction of this kind. The bald fact that Jonas was manager of the Pueblo store of Marcus Saul can in no sense be taken as proof of either real or apparent authority in the former to bind the latter for the purchase price of goods, with which to set himself up in business. This is the sole fact produced upon which reliance is had to show such authority. It is thus clear that the contention that the jury, on conflicting testimony, found such authority to exist, and that such finding binds this court, is without merit. There was not only no conflict in testimony, there was an entire absence of testimony even tending to establish such authority.

The witness Light testified that he saw lat"Where one would hold the principal for er two or three of the children's sample overthe acts of an alleged agent, he must either coats with fur collars, sold in this bill of show an express authority delegated to the goods, at the Pueblo store of Marcus Saul. representative, or a course of conduct pur- This is vigorously denied, and Light's identisued along the lines of the due course of the fication is by no means conclusive, or even particular business carried on to the knowl- satisfactory, he having seen the goods only edge and with the real or apparent consent at a distance. Upon the strength of this tesof the principal which will estop him to deny timony an affirmance of the judgment is urgan original grant of power. If this case is to ed, under the rule that the principal will not be brought within the latter principle, he who be permitted to keep the product of a purthus deals with an agent is as much bound chase and refuse to pay, even though the as in the first case to inquire about the agent's agent was without authority to buy. Even authority and if he thereby learns or by such if this principle of law could, at this late day investigation might have found out the actual and now for the first time, be invoked, the limit of the agent's power, he may not insist supposed benefit to Marcus Saul is of such that the authority was apparently possessed, doubtful import, and so trifling in amount, and on that theory hold the principal for that it cannot be permitted to rule the case. what the agent has done, when in fact he had However, the action is planted by the pleadno real right to act. I agree in the main ings, proof, and instructions of the court alone with this law and concede that he whose upon the doctrine of agency. An inspection cause of action grows out of an agent's acts, of the instructions shows this conclusively. must either prove an actual power delegated, No question of benefits to Marcus Saul from

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

that so long as they did not apprehend, or have reason to apprehend, that such claim would be made, it was not necessary to notify the defendant; and that, as soon as this latter event happened in the case at bar, the defendant was verbally advised of the accident and claim, and by its actions and conduct waived the written notices required. The rights involved in this litigation are contractual, and are measured by the terms and conditions of the policy, which must be given a "reasonable and natural construction." It is equally true, as argued by counsel, that in cases of ambiguity or uncertainty in the clauses in a policy of insurance which limit or exempt the insurance company from liability that construction most favorable to the assured, consistent with the terms of the policy, must be adopted. American Surety Company v. Pauly, 170 U. S. 144, 18 Sup. Ct. 552, 42 L. Ed. 977. These rules are sound and should always be applied, but no court should, or can, properly, take from the parties the inherent right to contract as they will, and make a contract for them as they might have made in the light of subsequent

icy; nor was any written notice given either to the defendant or to Daly of the claim for damages. June 12th following the accident some one from the hotel telephoned to the office of Daly to the effect that the accident or injury had occurred. Daly thereupon visited the hotel, and, after some conversation as to the facts of the accident, notified the manager of the hotel that "the notice was late and the company would not accept liability at that time." An attorney, at the request of Daly, on said date, or very soon thereafter, took written statements of the manager of the hotel and others as to the accident. Daly thereafter, in July, had some conversation with Mr. Gilmore about the accident, and on the 30th of that month wrote the plaintiffs that the notice of the accident could not be accepted, "as the conditions of the policy were entirely ignored and the notice not sent in for nearly three months after the occurrence of the accident." The plaintiffs explained that they were led to believe, by the statements of the party injured to the manager of the hotel, that the trustees were in no wise to blame for the accident, and that "there would be no claim for dam-events. ages, and, of course, no suit." Mrs. Smails, Counsel say that if a person be injured aphowever, within two weeks or a month claim-parently by his own negligence on premises ed damages, notified plaintiffs, and on September 17, 1896, instituted suit against the plaintiffs here, and recovered judgment for damages on account of the injury sustained by her in said accident. Upon the commencement of that suit, the defendant here was notified and requested to take charge and defend, which it had a right to do under the terms of said policy, but declined so to do, though some negotiations were had relative to an arrangement by which it could defend without waiving any of its rights to deny liability under the policy of insurance. The judgment for damages was against Barclay only; his co-trustee not having been served with process. Each of said trustees, however, paid one-half of the judgment, and thereafter instituted this suit to recover the sum designated in the policy, which was less than the amount of the judgment paid. The trial was to the court without a jury, resulting in a judgment for the defendant, from which this suit is prosecuted.

owned by another, protected by an insurance policy, the assured has no knowledge or even grounds for suspicion that the party injured will make any claim against him for damages, and that such a circumstance or happening does not really become an accident within the meaning of the policy until the assured is notified or in some way acquires knowledge that damages will be claimed. Were we to accept this reasoning and interpretation of the policy, which we do not wish to be understood as doing, it would not avail the plaintiffs, as they did not bring themselves within the supposed rule. They knew through their special agent, the active manager of the hotel, and their general agent, Gilmore, of the accident immediately after its occurrence, and within two weeks or a month they likewise knew that the injured person claimed damages and intended to hold plaintiffs therefor, yet no notice of any kind was given defendant until at least two months thereafter, and then simply a telephone mesThe defendant contends that the express sage that the accident had occurred. Clearlanguage of the policy requires immediately the plaintiffs are not within the terms of written notice to be given it whenever any the supposed rule which they seek to invoke. accident occurrs within the terms of the pol- Therefore we need not, and do not, determine icy, and another such notice whenever a whether a reasonable construction of. the claim is made for damages based upon in- policy did, or did not, require the giving of juries sustained in such accident; that plain- notice or notices, unless the circumstances of tiffs having failed to give the required no- the accident suggested that some claim for tices, or either of them, the defendant is re- damages might be made, or the plaintiffs apleased and exonerated from liability under prehended, or had reason to apprehend, that the policy. The plaintiffs, however, in ar- such claim would be made. Not only did the gument assert that a reasonable construc- circumstances of the accident suggest that tion of the policy did not require the giving some claim for damages might be made, but of notice or notices, unless the circumstances the party injured was within two weeks or a of the accident suggested that some claim month thereafter actually asserting that she