2. Evidence of the Appoint men I.

В§ 70. Authority not to be proved by agent's ad-

missions. — The authority of the agent must in all cases

he traced to the principal, and must be established by

evidence of his acts or statements. As against the prin-

cipal, therefore, the agent's admissions or declarations

(as distinguished from his testimony, as a witness i;i

court), are not admissible for the purpose of establish-

Ing, enlarging or renewing the agent's authority; nor

can his authority be established by showing that he

acted as agent, assumed to be agent or was generally

reputed to be agent. The agent's acts and statements

cannot be made use of against the principal until the

fact of his agency has first been shown by other evi-

dence.

See Hatch v. Squires, 11 Mich. 185, Cas. Ag. 106; Mitchum v.

Dunlap, 98 Mo. 418; Kornemann v. Monaghan, 24 Mich. 36; Graven

V. Korton, 38 Minn. 66, Cas. Ag. 82; Kane V. Barstow, 42 Kan. 465,

16 Am. St. Rep. 490; Mullanphy Savings Bank V. Schott, 135 111.

655, 26 N. E. Rep. 640, 25 Am. St. Rep. 401; Pepper V. Cairns, 133

Pa. St. 114, 19 Atl. Rep. 336, 19 Am. St. Rep. 625; Baltimore, etc..

Relief Ass'n v. Post, 122 Pa. St. 579, 9 Am. St. Rep. 147.

When it is said that the agent's statements, admissions and dec-

larations cannot be made use of until the fact of his agency has

been shown by other evidence, it is not meant that there must first

be a separate verdict found establishing that fact; what is meant

Is, that there must first be some competent testimony offered tending

to prove that fact.

В§ 71. But agent may be called as a witness.

— If the agent's evidence as to his authority is desired,

he must be called as a witness; his testimony as to the

42 Appointment of agents. [в§в§71-73.

nature and extent of his authority, where it rests in

parol, being as competent as that of any other witness.

It is necessary to distinguish between what the alleged agent

may admit, represent or declare, out of court, when he is not under

oath or subject to cross-examination, and his testimony as to the

facts concerning his authority when he is called as a witness.

See Howe Machine Co. v. Clark, 15 Kan., 492, Cas. Ag. 107;

Thayer v. Meeker, 86 111. 470.

His testimony, moreover, "cannot be restricted to the

more words used by the principal, but is admissible

generally on the whole subject."

Zze Lawall v. Groman. ISO Pa. 532, 37 Atl. Rep. 98, 57 Am. St.

Rep. 662.

The agent's testimony, further, like that of any other

witness, is not necessarily conclusive. It has such

weight as its credibility entitles it to receive. Thus it

might be found from other evidence that he was agent,

though he testified that he was not, or that he was the

agent of one party, though he testified that he was

agent of another.

See State v. Bristol Savings Bank, 108 Ala. 3, 18 So. Rep. 533,

54 Am. St. Rep. 141.

§ 72. What constitutes the best evidence. —

^Yhere the authority is conferred by written instru-

ment, the writing is the best evidence of the existence

and nature and extent of the authority, and must be

produced, or its absence accounted for, in any case in

which the question of the existence of the authority is

directly involved; but where the question is only col-

laterally involved, that is, where it arises incidentally