Perkins v. Insurance Co., 4 Cow. 645; Bridenbecker v. Lowell, 32 Barb. 9. In the last case cited, the court say: 66 "A general agency is therefore constituted, not by the authority which the agent actually receives from his principal, but by that which the latter allows the agent to assume.' Ceeder v. Lumber Co., 86 Mich. 541. The base of the company's operations was in the northern part of the State, distant from the general offices of the company. Davis was the sole representative of the company in that locality. He held himself out as chief engineer and superintendent of construction. In Whitaker v. Kilroy, 70 Mich. 635, 638, Mr. Justice CAMPBELL says: "We think that persons dealing with such a corporation for work have a right to get their information from the person whom the corporation has put in charge, and cannot be required to go elsewhere; and that contracts so made are valid contracts when relating to the ordinary concerns of such business. And if persons are not sustained in contracting with such superintendents they can never be safe. They have no means of knowledge except inquiry somewhere, and the person put by the corporation in open charge of the business must have power, as to third persons, to represent it." Plaintiffs were entitled to show what powers had been assumed by Davis, and the extent to which he had been contracting in the name of the company, and any instances in which such conduct had been brought home to the knowledge of the company or its officers. Olcott v. Railroad Co., supra; Beattie v. Railroad Co., 90 N. Y. 643. The declarations of an agent are not admissible to prove an agency, but when there is testimony to show ratification, or original authority, or a holding out to the world as having authority, such declarations accompanying the act are admissible to show in what capacity he contracted. Campbell v. Sherman, 49 Mich. 534, 536; Haughton v. Maurer, 55 Id. 323; Bacon v. Johnson, 56 Id. 182. 97 398 148 299 We find no error in the record, and the judgment is affirmed. LONG, GRANT, and MONTGOMERY, JJ., concurred. HOOKER, C. J., did not sit. VICTORIA E. BELLIS V. WATSON W. LYONS. Bills and notes-Possession-Presumption of ownership-Gift Evidence. 1. In trover against an administrator for the conversion of notes claimed to have been given to the plaintiff by the payee shortly before his death, it appeared that the plaintiff had been the housekeeper of the payee for some months prior to his death, he being a childless widower, and that the notes were found in her hand-satchel in a bureau drawer in the house of the payee, unindorsed by him. And it is held that the title to the notes will be presumed to have remained in the payee, and that a contrary presumption does not arise from the possession of the plaintiff, she being the proper custodian of the property of the deceased until an administrator was appointed. 2. The failure of the plaintiff to assert her ownership of the notes at the time she executed a sworn petition for the appointment of defendant as special administrator, which stated that the notes belonged to the estate, and her statement when the will of the deceased was read, which gave her ample compensation for her services, that it was not what she had expected, and the fact that the deceased, a business man, made no transfer to her of the notes by indorsement or other writing, are held conclusive evidence against plaintiff's claim. Error to Macomb. (Canfield, J.) Argued October 5, 1893. Trover. Plaintiff brings error. Affirmed. The facts are stated in the opinion. Crocker & Crocker, for appellant, contended: 1. In cases of this character, the court cannot properly take the facts from the jury. Plaintiff had a right to have her side of the controversy assumed to be true, and in no way affected by counter-proofs; citing Strand v. Railway Co., 64 Mich. 216; Charon v. Lumber Co., 66 Id. 68; Guggenheim v. Railway Co., Id. 150. Eldredge & Spier, for defendant, contended: 1. The presumption of ownership arising from possession disappears when there are circumstances accompanying it that rebut the presumption; citing Banking Co. v. Bank, 51 N. W. Rep. 596. 2. The notes all appear to have been given to the deceased, and the fact that he was at one time the owner is conceded, and such ownership must be presumed to have continued, and the burden is upon the plaintiff to show that there has been a change of title; citing Wood, Pr. Ev. § 205, p. 666; Magee v. Scott, Cush. 148; Sawyer v. Spofford, 4 Id. 598; Zwisler v. Storts, 30 Mo. App. 163. 3. As against defendant, taking possession as special administrator, the claimed possession of the plaintiff, if unquestioned as a fact, would not raise the presumption of a change of title; citing Daniel, Neg. Inst. § 812; Durein v. Moeser, 36 Kan. 441; Robertson v. Dunn, 87 N. C. 191; Tuttle v. Becker, 47 Iowa, 486; Merlin v. Manning, 2 Tex. 351; Ross v. Smith, 19 Id. 171; Dessaint v. Elling, 31 Minn. 287; Van Eman v. Stanchfield, 10 Id. 255; Price v. Brown, 98 N. Y. 388; Redmond v. Stansbury, 24 Mich. 445; Robinson v. Wilkinson, 38 Id. 299. GRANT, J. The defendant was the special administrator of one Thomas Morgan, deceased. As such he took possession of 22 promissory notes given to said Morgan in his life-time. Some of the notes were secured by chattel and real-estate mortgages. Plaintiff, claiming title to said notes. by gift and delivery by Morgan, after demand and refusal on the part of defendant to surrender them, brought this action of trover to recover their value. The court directed a verdict for defendant, on the ground that plaintiff had failed to establish her ownership of the notes. The estate inventoried $8,117, of which the real estate was $4,300, and the notes in question $3,624.75. Morgan had been twice married. He had had two children, both of whom died without issue. After the death of his wife and children, he continued to live in his homestead, sometimes alone, and sometimes employing a housekeeper. Eighteen months before his death he employed plaintiff as his housekeeper. She lived with and took care of him during the rest of his life. He executed a will September 7, 1889. by which he devised his property to some neighbors and relations, giving specific bequests to each. third clause of his will he provided as follows: By the "In case my present housekeeper, Victoria Bellis, shall remain with me as such housekeeper until my death, as her compensation for so doing, in addition to such payments as I make her during life, I give and devise to her that certain lot of land situate in the township of Ray, in said Macomb county, Michigan, known as the Ray Exchange,' and, as well, the two pieces and parcels of land adjoining the said Ray Exchange,' owned by me, and the further sum of $500. But in case she shall not so remain with me as my housekeeper until my death, then and in that case she is to have out of my estate only her wages at the rate of one dollar per week." After the specific bequests he bequeathed the residue of his estate to all the legatees named in the will, except the plaintiff, to be distributed between them in proportion to the specific legacies given. He died on the 31st day of January following. Plaintiff claims title by gift from Morgan two or three days before his death. Some of the notes were payable to the order of Mr. Morgan, while others were non-negotiable. None of the notes were indorsed by Morgan, nor were any of the securities assigned to plaintiff; neither was there any written evidence of gift or transfer. Her counsel insist that there was evidence from which a jury would be justified in inferring a completed gift and delivery. It therefore becomes necessary to give the evidence upon which this claim is based. Plaintiff herself testified that, when defendant came and asked for the notes, they were in her hand-satchel in the bureau drawer, and that they had been there two or three days before Morgan's death. One Chester Cooley testified that he had a conversation with Morgan the latter part of December, 1889, about plaintiff and his property; that he said to Morgan, in a laughing and joking way: "The woman is taking care of your house and you in good shape, and you, getting old and feeble as you are, ought to do well for her.' Says he, I have already.' Says I, What have you done?' And he says, 'I have given her somewhere near $3,000."" One Heydenreich testified that he borrowed $1,000 of Mr. Morgan, June 26, 1889, for which he gave him a note and real-estate mortgage; that Morgan asked plaintiff if he should let witness have it, to which plaintiff replied, "Yes;" and that Morgan said that he did not care, for it was her money. After this conversation Morgan loaned. witness the money, taking the note and mortgage in his own name. One Lathrop testified that he had a conversation with Morgan, but he could not fix the year nor the time of year it occurred, in which he said "if Mrs. Bellis did as well as she had, he'd give her all he had. He told about her doing first rate. I have heard him tell of giving to others." One Miller, a brother of plaintiff, testified that Morgan asked him to talk with his sister in regard to going there to keep house for him; that he said, if she would go there and take care of him as long as he lived, he would give her his property; that witness did not communicate this, however, to the plaintiff; that he had heard plaintiff joke Morgan in regard to his having trouble to collect his accounts, and that Morgan said, "Well, when I am gone I would like to see what a time you will have in collecting these notes." 97 MICH.-26. |