Milwaukee & Wyoming Inv. Co. v. Johnston. 2. 3. : But such usage, to bind a principal,must have existed for such a time, and become so widely and generally known, as to warrant the presumption that he had it in view at the time of the appointment of the agent. : : RULE APPLIED. The M. & W. I. Co., a Wisconsin corporation owning a cattle ranch in Wyoming, appointed one A. its agent in Wyoming with limited power, viz., to hire and pay for the necessary help, and pay the current expenses with money remitted on his statement, and to care for and round up the cattle and ship them when fit for market to Chicago in care of a particular commission house. In an action of replevin by the company aforesaid against J. & R., to recover cattle claimed by the latter to have been purchased from A. on the ranch aforesaid, held, error to receive evidence on the part of the defendants to prove that, at the time they purchased the cattle from A., it was the custom or usage of managers of cattle companies doing business in Wyoming to sell the cattle from the ranches of such companies, in the absence of any evidence that the plaintiff company had knowledge of such usage. ERROR to the district court for Merrick county. Tried below before MARSHALL, J. George H. Noyes, and J. W. Sparks, for plaintiff in error: Where authority is conferred by an express agreement the extent thereof must be ascertained from the agreement or instrument itself, and cannot be enlarged, modified, or controlled by evidence of implied authority at variance with that which was given expressly. (Story, Agency, sec. 76; Schooner Reeside, 2 Sumner [U. S.], 567; Dickinson v. Gay, 7 Allen [Mass.], 29; 1 Greenleaf, Ev., sec. 292, 293; Mechem, Agency, sec. 274; Hopper v. Sage, 112 N. Y., 530.) Usage cannot enlarge or vary the authority or character of an agent, where such powers or authority have been conferred by express contract, or by instrument in writing. (Robinson v. Mollett, L. R. 7, H. L. [Eng.], 802; Higgins v. Moore, 34 N. Y., 417; Hibbard v. Peek, 75 Wis., 619; Lamb v. Henderson, 63 Mich., 302; Story, Milwaukee & Wyoming Inv. Co. v. Johnston. Agency, sec. 76; Assurance Soc. v. Ins. Co., 84 Va., 116; Hermann v. Ins. Co., 100 N. Y., 411; 2 Parsons, Contracts, 546; Graves v. Horton, 38 Minn., 66; Lucke v. Yoakum, 25 Neb., 427; Wanless v. McCandless, 38 Ia., 24; Bradley v. Wheeler, 44 N. Y., 503.) Plaintiff must be shown to have knowledge of custom before it can be bound by it. (Mechem, Agency, sec. 262; Walls v. Bailey, 49 N. Y., 464; Barnard v. Kellogg, 10 Wall. [U. S.], 383; Hopper v. Sage, 112 N. Y., 530; Pickert v. Marston, 68 Wis., 465; Power v. Kane, 5 Id., 268; Hall v. Storrs, 7 Id., 277.) Every person who contracts with the officers or agents of a corporation must at his peril take notice of the limits of their powers. (Wheeler v. Plattsmouth, 7 Neb., 270, 279; Graul v. Strutzel, 53 Ia., 712, 715; N. Y. I. M. v. Negaunee Bank, 39 Mich., 644.) Representations by agent cannot establish fact of agency. (Bond v. R. Co., 62 Mich., 643; Delta Lumber Co. v. Williams, 73 Id., 86.) Agent had no implied authority to sell. To authorize an inference of authority where none is expressly conferred, it must be practically indispensable to the execution of the duties really delegated. (Bickford v. Menier, 107 N. Y., 490; Dodge v. McDonnell, 14 Wis., 553*; Coquillard's Adm'r v. French, 19 Ind., 274; Billings v. Morrow, 7 Cal., 171; Hodge v. Combs, 1 Black [U. S.], 192.) John L. Webster, contra, cited: Spangler v. Butterfield, 6 Col., 356; Sacalaris v. E. & P. Co., 18 Nev., 155; Adams M. Co. v. Senter, 26 Mich., 73; Grafins v. Land Co., 3 Phila., 447; Lee v. Pitts C. M. Co., 56 How. Pr. [N. Y.], 376; Griswold v. Gebbie, 126 Pa. St., 353; Ruggles v. American Cent. Ins. Co., 114 N. Y., 415; McKiernan v. Lenzen, 56 Cal., 61; Antoine v. Smith, 40 La. Ann., 560; Brooks v. Martin, 2 Wall. [U. S.], 70; Niemeyer v. Wright, 75 Va., 239; Pratt v. Short, 79 N. Y., 437; Prince v. Church, 20 Mo. App., 332; Bowditch v. Ins. Co., 141 Mass., 292; Larned v. Andrews, 106 Mass., 435; De Mers v. Daniels, 39 Minn., 158. Milwaukee & Wyoming Inv. Co. v. Johnston. A. Ewing, also, for defendants in error. POST, J. This was an action of replevin commenced by the plaintiff in error, a corporation organized under the laws of the state of Wisconsin, to recover the possession of 250 head of cattle. The plaintiff is organized for the purpose of acquiring land in Wyoming and raising and selling cattle therefrom. Its capital stock is $500,000, and its business is managed by a board of directors. It owns and carries on a ranch with a large number of cattle in Wyoming. By its by-laws, all deeds, contracts, and other instruments in writing to which the company may be a party, are required to be signed by its president and secretary, which latter officer is to affix the seal thereto. The president is invested with the general care and supervision of the affairs and property of the company. It is the duty of the treasurer to receive and pay all moneys, and he is custodian of contracts and other papers belonging to the company. The by-laws provide that there may be appointed, by the board of directors or executive committee, a manager and subordinate officers and agents, and further that the manager shall reside and keep his office in the territory of Wyoming, and shall have the charge and management, subject to the orders of the directors, of all the affairs and property of the company. He may appoint employes and agents necessary to protect and take care of the property and interests of the company, and fix their salaries subject to the approval of the board or the executive committee. He is prohibited from contracting any debt or entering into any contract involving an expenditure of more than $500, unless specially authorized by the directors or executive committee. The office of the company is to be in Milwaukee as well as those of the secretary and treasurer. Milwaukee & Wyoming Inv. Co. v. Johnston. The testimony on behalf of the plaintiff was, in substance, that George Mitchell, a stockholder, director, and vice president of the company, managed its affairs in Wyoming down to the fall of 1887, when one Chadwick acted in that capacity until the fall of 1888, but neither had authority to sell the cattle, but shipped them as directed, to the commission house of Geo. Adams & Burke, Chicago, to sell and remit the proceeds to the treasurer at Milwaukee. At a meeting of the board of directors of the plaintiff, held in Milwaukee, July 7, 1887, the president was instructed to make such changes in the management of the ranch as might in his judgment be necessary for its more economical management, and that, in pursuance of such instructions, in November, 1888, he employed one Thomas R. Adams to perform certain specified duties on the ranch, instructing him to purchase supplies therefor, hire the men, and send in the accounts monthly to the treasurer at Milwaukee, who would remit the money for the payment thereof; to gather the cattle on the round up and ship them to George Adams & Burke, Chicago. Adams was given no authority to ship cattle elsewhere, nor was he authorized to sell or dispose of the cattle at any time or in any way or place. He had specific instructions from the officers of the plaintiff company not to sell any cattle from the ranch. These instructions were verbal, given him at the time of his employment and never modified thereafter. In addition to the above terms of hiring, there was no official or corporate action appointing Adams as manager, and no record in the minutes of the company of his employment. He had instructions in writing from the president of the company on or about the 20th of July, 1888, to consign about 300 four-year-old steers and 400 three-year-old steers to George Adams & Burke, billing them by the way of Omaha to Chicago to be sold at one or the other of such places by such commission house. It also appears undisputed by the record that Milwaukee & Wyoming Inv. Co. v. Johnston. Adams had never sold any cattle prior to the time in question. It also appears to be undisputed that he had never sold anything from the ranch except some old fence wire, and exchanged with a neighboring ranch a part of a cow killed for beef, but such facts are unknown to plaintiff, or any of its officers or directors prior to the time of the institution of this suit. The testimony on behalf of the defendants shows that in October, 1889, said Adams, through one T. D. Perrine, a cattle salesman of Omaha, negotiated a sale of 250 head of three and four year steers from the plaintiff's ranch to the defendants, at $22 per head; that the defendants were in Wyoming at the time of such transfer, and having been informed by Perrine of Adams' offer, directed the latter to look the cattle over and select 250 head from them and take charge of their shipment to Central City, Nebraska. Rush wrote out a check for $1,000 on a bank of Pittsburg, Pennsylvania, payable to Thomas Adams, which he gave to Perrine to be delivered to Adams as part payment for the cattle. The testimony is, that he made the check payable to Adams instead of to the company or its treasurer, or other of its officials, because at the time he could not think of the name of the company. A day or two after the delivery of the first check, Rush gave Perrine another check for $4,000, payable to Adams on a bank in Chicago, and authorized Adams to draw for the balance. Perrine deposited, in a bank at Cheyenne, Rush's check for $1,000, November 1, 1889; the check for $4,000, November 11, 1889, and a check for $480, on the 14th of November, 1889. This money was all checked out by Adams for his ówn use. This transaction with Adams was the first one that was ever had with him, either by Perrine or the defendants. Nor had either Perrine or the defendants ever before dealt with the plaintiff or any of its officers or employes, nor was it shown that either of the defendants had ever heard of a similar transaction by Adams. Soon after |