Apr. 1902.] Opinion of the Court-FULLERTON, J. agent when the agent acts within the apparent scope of his authority, no matter what may be the limitations fixed upon that authority, so long as such limitations are not communicated to the person or persons with whom the agent is authorized to deal. And where, as in this case, an agent is put in charge of the business of a principal with power to sell its goods, collect for the same, make purchases of other dealers when it is necessary to fill orders. calling for goods that may not be in the stock of which he has charge, it would be too much to say, as a matter of law, that the agent did not have apparent authority to pay for the goods so purchased, even by indorsing the checks of his principal for that purpose; at least, it is a question on which common minds might reasonably differ, and for that reason a question for the jury. We have not overlooked the contention to the effect that the corporate powers of the appellant, as shown by its charter, does not authorize it to deal in goods other than a particular kind, and hence it had no authority to make such purchases as were made of the respondent even had it directly authorized its agent so to do. But this cannot aid the appellant. A corporation has sometimes been permitted to disavow an unexecuted contract which it has attempted to enter into, because beyond the scope of its charter powers; but the doctrine of ultra vires, so far as we are aware, has never been invoked successfully when the purpose was to permit a corporation to recover money paid by it for the purchase of goods which it had received and appropriated to its own use. The court gave to the jury the following instruction: "You are further instructed that the laws of the state of Washington prescribe the liability of an intermediate indorser upon a check, and such laws provide as follows: Every indorser who indorses without qualification war Opinion of the Court-FULLERTON, J. [28 Wash.. rants to all subsequent holders in due course that the instrument is genuine, and in all respects what it purports. to be; that he has a good title to it; that all prior parties. had capacity to contract; that on due presentation it will be accepted or paid, or both; and that if it be dishonored. he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it. "If you find from the evidence in this case that thechecks upon which this action is founded were regularly delivered to an agent of the plaintiff, no matter what the authority of that agent was; that such checks were transferred to the defendant in the regular course of business, no matter whether the indorsement thereon was genuine or forged; that the defendant, in the regular course of business, indorsed such checks and delivered them to some person, corporation, or bank, other than the one upon which drawn, and received either money or credit thereon, in the regular course of business, and indorsed said checks for the purpose of transferring them, and such other person, corporation, or bank afterwards indorsed the same to another person, corporation, or bank, then you are instructed that the defendant, Redelsheimer, became an intermediate indorser of those cheeks, and is liable only to subsequent holders in due course, and is not liable to prior holders or indorsers, even though the prior indorsement may have been forged. Under the laws of this state, the contract of the indorser is only with the subsequent holders in due course of business, and the contract is that which I have heretofore stated to you, and there is no contract between the intermediate indorser and the holder or indorser next prior to him; that in this case it is conceded that the plaintiff, Graton & Knight Manufacturing Company, is not a subsequent indorser of these checks in the due course of business." This was error. It is doubtless true that the respondent is liable as indorser only to the subsequent holders'in due course, but the appellant's right of action is founded. upon an entirely different principle. The appellant's action is founded upon the claim that the respondent re Apr. 1902.] Opinion of the Court-FULLERTON, J. ceived certain checks belonging to it, indorsed in its name by a person having no authority or apparent authority so to do, collected the same, and appropriated the proceeds thereof to his own use. If this be true, if the respondent did receive the appellant's checks, collect and appropriate the proceeds thereof to his own use, knowing, or having knowledge of such facts as would cause a reasonable man to believe, that the person indorsing and delivering them to him had no authority to so indorse and deliver them, he is responsible to the appellant therefor, and can be sued as for conversion, or for money had and received to the appellant's use. It can make no difference that he did not personally collect the checks from the payee. As between him and the appellant, his subsequent indorsers are but his instruments for the collection of the checks. To them he may be liable upon his contract as indorser, but to the ap pellant he is liable, if liable at all, as for a wrongful appropriation of its property. The court withdrew from the consideration of the jury certain oral evidence tending to show what the authority given Bynon was with reference to the indorsement of checks, for the reason that it was not shown that it had been communicated to, or that the respondent had knowledge thereof. This was error. The extent of Bynon's actual authority was one of the issues in the case, and the appellant was entitled to show its extent by any competent. evidence. It is claimed that the court erred in admitting in evidence certain advertisements of the appellant's business contained in the city directory of the city of Seattle, set in display type, in one of which Bynon was described as appellant's local manager. It was shown that this particular one was inserted by Bynon shortly after he was employed by the appellant; one of the appellant's witnesses, who Opinion of the Court-FULLERTON, J. [28 Wash. testified that he had charge of the appellant's advertising matters, saying that it was unauthorized by and unknown to him. The others were insertions for the years immediately prior and subsequent to the one containing Bynon's name, in the first of which the agent was described as manager, and in the second as storekeeper. The court admitted them, not as evidence of Bynon's actual authority, but as circumstances tending to show that the appellant had permitted Bynon to hold himself out to the public as possessing the authority usually possessed by agents occupying similar positions. As such, we do not think they were ob jectionable. They tended to show that the city directory was a medium adopted by appellant for the purpose of advertising its business; and it is not an unreasonable inference that the appellant knew or ought to have known, what such advertisements contained. Furthermore, if any one is to suffer by the acts of Bynon done within the apparent scope of his authority while engaged in the transaction of the appellant's business, it must be the appellant itself. It cannot put him in charge of its business, shut its eyes to his acts, and escape liability therefor by secret instruction limiting his authority. It is under a duty to oversee how he conducts himself with reference to its business, and all of his acts with reference thereto can be shown, whether actual knowledge of each particular act can be brought home to the principal or not. We have examined the other errors assigned and do not find them of merit sufficient to require special discussion. For the errors above mentioned, however, the judgment must be reversed and a new trial had, and it is so ordered. REAVIS, C. J., and DUNBAR, ANDERS, MOUNT, HADLEY and WHITE, JJ., concur. [No. 4148. Decided April 22, 1902.] CLYDE GUY SROUFE et al., Respondents, v. MORAN BROS. 28 381 32 328 28 381 40 286 WHEN FELLOW SERVANT BECOMES VICE PRIN MASTER AND SERVANT Where the foreman of a shipyard in charge of the construction of a vessel was compelled, by reason of the location and distance of the winch used in raising timbers, to employ an intermediary for the purpose of signalling the men in charge of the winch, in respect to paying out or taking in the rope for the purpose of hoisting or lowering timbers, the fact that such intermediary was a ship carpenter, taken from his work and used to transmit the foreman's signals, would make him for the time being, while discharging that duty, a vice principal, and injuries resulting to another ship carpenter on account of his negligence, while in the performance of a duty devolving upon the master, could not be chargeable to the act of a fellow servant. SAME INSTRUCTIONS. INJURIES TO SERVANT-MASTER'S DUTY In an action to recover for the death of a ship carpenter caused by the falling of a cant timber upon the staging where he was at work, an instruction that "whatever was necessary or needful or useful in order to raise the cant in an ordinarily safe manner, and consistent with the care and caution necessary to render safe and free from danger the workmen engaged in it, are instrumentalities or appliances, within the meaning of the law, whether the same be ropes, engines, platforms or staging, or serv ants; and it is the duty of the master to furnish all such neces sary instrumentalities and appliances, whether ropes, machinery, staging or servants, and that they shall be reasonably suitable and competent," is not erroneous on the ground of making the master an insurer of the servant's carefulness, while the law requires only reasonable care in their selection and retention, where other instructions given told the jury that it was the duty of the master to provide all necessary appliances, including servants, and that they were to be reasonably suitable and competent, and that the master had discharged his duty in this respect when he had exercised reasonable care to provide such. SAME RELEVANCY OF INSTRUCTIONS TO PLEADINGS. Such instruction is not erroneous on the ground of tending to confuse and mislead the jury because outside of the issues, in |