receiver may continue the business of the La Jara store, and replenish the stock therein from the moneys received, until said stock can be sold at a good and reasonable price." The sole difference between the parties to this suit is over the interpretation of that clause. It appears that, immediately after the parties agreed upon the order, Mr. Eskridge took possession of the store, and became what might well be termed a "country merchant." He employed the usual and necessary help to aid in his business, and proceeded to sell and dispose of the stock in the ordinary course of trade, and to further his purpose, and what he conceived to be the intent of the order, he replenished the stock from time to time by the purchase of such goods as were essential to the carrying on of the business at the store. These goods were not generally bought for cash, but, as is the custom of merchants, on the usual 30 days' time, and ultimately, as the bills came in, they were liquidated out of the proceeds of the sales. It is this circumstance which has led to the dispute. The business was carried on until the court met at the ensuing term in the following June, when the receiver was called upon for a report. He filed a statement under the order, and at various times amended it, until he had placed on file some six or seven statements concerning the execution of his trust. The court made sundry orders concerning the matter, and finally, in May, 1892, which was about three years after the original appointment, found that there was due from him the sum of $1,179.75, which he was directed to pay into court by the 11th of July, 1892, for the benefit of whomsoever might be entitled to it. It will be seen that the controversy over the administration of the trust had been continued some two years before this final result was reached. In making the order the court held that Eskridge was without authority to buy the goods with which he had replenished the stock, and that he had, in violation of his trust, bought the goods on credit, and was therefore disentitled to any allowance because of these purchases, or to any allowance for the proportionate disbursements attendant upon their disposition. In other words, the court adjudged that in winding up the estate and settling the accounts of the receiver he was to be charged with the goods which came into his hands originally, the moneys which he had collected on account of the debts due the firm, and was only to be credited with such proportion of his subsequent outlay as that result might bear to the sum total of the business. As the court put it, these matters stood in the ratio of 6 to 23, and in reference to all his expenditures and transactions the court computed the result on such basis, and concluded that he owed the estate $1,179.75.

There will be no attempt whatever to state the accounts of the receiver with the estate

on the basis of the information which is contained in the record. This labor will be devolved upon the court below, which has, or can acquire, complete data for the determination of the rights of the parties under the rules which we may announce. The status of a receiver is well settled in the law. He is a trustee and an officer of the court, he is charged with the duty of managing the estate intrusted to his care, and he must see to it that this duty is performed with due regard to the rights of the litigants, and in such manner as, according to his best judgment, to preserve and bring into court what has been committed to his care. It would ordinarily be true that he would have no right to carry on a mercantile business of which he had been put in charge otherwise than to dispose of the property turned over to him for the best price possible, and produce the funds for the benefit of those entitled to them. Should he do otherwise, he doubtless would, in the absence of express authority, be liable for any damage which might occur. But the present case is not brought within the scope of that very well recognized rule. The only person contending for the enforcement of the order is Smith, one of the litigants, and he cannot be heard to complain of what the receiver did without some other showing than that in the record. The order under which Eskridge was appointed, and which gave him authority to act, was entered by consent. The parties are bound by its 'terms. They are concluded as to what Eskridge did under it, providing his acts can be brought within the scope of the order, and he is not, by the evidence aliunde, shown to have been guilty of misconduct. This last suggestion may be removed from our consideration, since the court expressly finds that what he did was under misapprehension of the orders of the court, and that there was, in his doings no element of misfeasance or malfeasance.

The naked question then remains whether the order justified the receiver in buying the goods as he did, and carrying on the trade, regardless of the result. This conclusion seems to us irresistible. In addition to the specific provision already recited, the order directed that none of the goods or property of the partnership should be sold at public auction, and ordered that they should be disposed of in the course of trade, and that the debts should be liquidated from the moneys arising from such sales of the property. When we remember that the order specifically directed the receiver to replenish the stock, and continue the business of the store and dispose of the goods in due course of trade, we must find that he was fully authorized to carry on the business of the store, and buy what in his judgment, reasonably and prudently exercised, should be essential to the execution of the terms and evident purpose of the order. So far as we are now advised from the present record, this was

all that he did, and he was entitled, on the showing which he made, to have his account so taken and stated as to include his purchases, and the expenses ordinarily and necessarily incident to the carrying on of the business. This interpretation put upon the order is all that seems essential to enable the district court to properly state the account, so as to do justice and equity as between the parties. There is not enough in the record to enable us to say what sum ought to be allowed the receiver for his compensation. It is always true that wherever a person is put in charge of property, to preserve it pendente lite, and to dispose of it and bring the proceeds into court, he is entitled to a reasonable and fair compensation for the work which he does. Since, in this case, the receiver was ordered to continue the business and to carry it on for the benefit of the parties, he is entitled to a fair remuneration for his labor. Whether the percentage which the court fixed would, under our interpretation of the duties and rights of the receiver, be deemed reasonable, we are not advised. There is not enough before us to enable us to determine what that compensation should be, and we can only suggest that if the whole transaction is found to be fair and free from misfeasance, and the trust was exercised with that reasonable prudence which a receiver is bound to exercise, the coinpensation allowed would not appear commensurate with the labor. The court, of course, under well-settled principles, is bound to take into consideration the manner in which the trust has been executed, and is quite at liberty, upon adequate showing in that regard, to either limit. the pay or withhold it altogether. That the court may be fully advised as to our conclusions of the proper basis on which to proceed to enter the proper order, we will further suggest that in our judgment the receiver should not be charged with the losses which resulted from the ultimate sale of the goods by auction. The goods were so sold by the direct order of the court, and the parties are bound by the consequences of the order which they procured to be entered. Since we have holden the goods which the receiver purchased a part and parcel of his trust, the loss on the sale of them would as legitimately become a part of his final account as any loss which may have occurred in the sale of the stock which originally came into his possession. This is enough to indicate to the court the basis on which the account should be taken and stated. No other question is presented by the record, and no matters have been considered or discussed by counsel in their briefs save those which turn upon the proper construction and consideration of this order, and its proper construction is therefore the only matter decided by the court. The order will be reversed, with directions to the court below to further proceed in conformity with this opinion.

1. The fact that goods ordered by an agent of a corporation for it were paid for by it will not estop it to deny the authority of the agent, he having afterwards made a similar order, where the form of the bill presented the corporation is not shown, and there is nothing else to show that the corporation at the time it paid the bill knew that the seller believed it to be the real purchaser.

2. Memoranda on the face of the corporation's checks given in payment, "Account of A.," and "For A.'s feed bill," are not notice to the seller that the goods were not purchased on the corporation's account.

3. Proof of a defendant's incorporation is unnecessary where it has appeared to a suit, and therefore the admission of parol evidence of its incorporation, though incompetent, is harmless error.

Error to Arapahoe county court.

Action by Ham & Jones against the A. Gauthier Decorating Company. Judgment for plaintiffs. Defendant brings error. Reversed.

T. J. O'Donnell, W. S. Decker, and Ben W. Jacobs, for plaintiff in error. Brinton Gregory, for defendants in error.

In

In

THOMSON, J. Ham & Jones, partners in the feed business, sued the A. Gauthier Decorating Company, a corporation, before a justice, to recover the amount of two bills for horse feed, alleged to have been sold by them to the decorating company in February and March, 1892, and recovered judgment, from which the defendant appealed to the county court, where judgment was again given for the plaintiffs. The defendant brings the case here by writ of error. December, 1891, and again in January, 1892, Wright Gauthier, who was in the employ of the defendant, ordered from the plaintiffs a bill of feed for the defendant. The articles so ordered were furnished and delivered by the plaintiffs to the defendant. January, 1892, the plaintiffs presented to the defendant their bill for the goods furnished in December, and in February for those furnished in January. Both these bills were paid by defendant's check on the American National Bank of Denver. On the face of the January check was the memorandum, "Ac. A. .Gauthier," and on the face of the February check the memorandum, "For A. Gauthier feed bill," which memoranda were written on the checks at the time they were drawn. In February, and the first half of March, the same Wright Gauthier ordered additional goods for the defendant from the plaintiffs, which were furnished as the others had been. On the 1st or 2d of March a bill was rendered to the defendant for the February account, which was retained by it until after the middle of the month. The defendant then declined to pay the bill, saying it had nothing to do with it. Wright

Gauthier had no authority from the defendant to order any of the goods which plain, tiffs had furnished. He was not its agent for that purpose. The goods were, as it appears, used by A. Gauthier as feed for his horses. This A. Gauthier was in the service of the defendant as superintendent of its business, under a written contract, by the terms of which he was to receive $200 per month for his services and the use of three of his horses and wagons; the horses and wagons, however, to be kept at his expense. This arrangement with A. Gauthier was unknown to the plaintiffs, who supposed from the fact of the bills being paid by the defendant that the goods were properly chargeable to it. Counsel for defendant refer us to the well-established doctrine that corporations are bound, and bound only, by the acts and contracts of their agents done and made within the scope of their authority. This is unquestionable law; and, in so far as a principal may be affected by the acts of an agent, or assumed agent, the application of the rule is not confined to corporations; it includes all principals; so that it may be said generally that no principal is bound by the acts of an agent outside of the authority conferred, or by the acts of one who assumes to be an agent, and is without authority. But, while this is true, cases frequently arise in which, notwithstanding no direct authority was ever given, it would be inequitable to permit its existence to be denied. One cannot, even negligently, mislead another to his prejudice, and escape the consequences by disavowing his own acts; and if he permits another to clothe himself with an apparent authority, or recognizes or adopts the acts of a party who has assumed to be his agent, in such manner as to induce third persons to believe in the existence of the authority and the agency, and, so believing, to deal with such apparent agent on the credit of the principal, he will be estopped to say that such party was not his agent and in possession of the requisite authority. This is evidently the theory upon which the plaintiffs rely for an affirmance of their judgment, because they make no claim that Wright Gauthier was in possession of any actual authority in the premises; but their proofs are insufficient for the purpose. It clearly enough appears that the goods were ordered for the defendant, and a portion of them paid for by it; but there is no evidence that the defendant, at the time it made the payments, knew that the plaintiffs believed it to be the real purchaser. Such knowledge is essential to an estoppel or a ratification. If the bills which were paid were made out in the name of the defendant, in such manner as to indicate that the plaintiffs supposed they were dealing with it, that fact would probably be sufficient to charge it with knowledge, or at least to put it upon inquiry. The bills upon which this suit was brought are made out

in that way, but there is no evidence as to the form of the bills which were paid. They were receipted by the plaintiffs, and left with the defendant. Proper legal steps should have been taken to compel their production in court, and, if these had been unsuccessful, parol evidence of their contents would have been received. The memoranda upon the checks, while they might indicate some private understanding between the defendant and A. Gauthier as to the disposition of the goods, were no notice to the plaintiffs that the goods were not purchased on the defendant's account.

Such

The plaintiffs were permitted, over the objection of the defendant, to prove its incorporation by parol. This was error. proof can be made only by an authenticated copy of its charter or certificate of incorporation. But the error was in no way prejudicial to the defendant. The defendant appeared and defended the suit in the justice's court. The judgment there recites such appearance. It appealed from this judgment to the county court, and gave an appeal bond, executed in its behalf by its officers apparently authorized for that purpose. It appeared in the county court, cross-examined witnesses, and introduced evidence. It thus admitted its corporate existence, for, if it had no existence, it could not appear. It did more. The effect of its appeal bond was an affirmation of its incorporation, and it was in the county court by virtue of such affirmation. If a corporation appears to a suit, it cannot deny its own existence, and such appearance is conclusive evidence of its legal existence for the purposes of the pending case. Railroad Co. v. Shirley, 20 Kan. 660; Seaton v. Railroad Co., 55 Mo. 416. Proof of its incorporation was therefore unnecessary, and it suffered no harm from the incompetent evidence admitted; but because of the deficiency in the evidence which we have mentioned the judgment must be reversed.

(3 Colo. App. 568) REPUBLICAN PUB. CO. v. MINER. (Court of Appeals of Colorado. Oct. 9, 1893.) LIBEL-RUMORS-INNUendo.

1. Where the obvious meaning of words in an article complained of is libelous, innuendoes in the complaint may be rejected as surplusage.

2. An article announcing the attempted murder of a family by poison, giving details of the atrocity, alleging search for the author, and directing attention by insinuation to a person in such manner as would naturally cause suspicion to rest on her as the would-be murderess, is libelous on its face.

3. An article describing a person as having such a mania for destruction that she scatters poison about the neighborhood for dogs, chickens, and household pets, and alleging that she poisoned a cow, tried to take her own life, and attempted the destruction of a family against whom she had a grudge, is libelous as tending to excite fear and abhorrence.

4. An article is libelous though it purports to be and is a publication of rumors.