On a former day of the present term of this court we affirmed the judgment of the trial court in this case. Subsequently the appellant filed a motion for rehearing, and that we certify this case to the Supreme Court. These motions were by us overruled. Appellant has filed a motion to reconsider our action on its former motion, and to grant a rehearing, and certify this ease to the Supreme Court. The mоtion is based upon the proposition that our opinion herein is in conflict with the opinion of the Court of Civil Appeals for the Sеcond District in the case of Lake Como Company v. Coughlin,
Is there a conflict between our opinion in this case and the cаses cited by appellant? We think not. Those cases simply announce the well-established rule of law that, in order for a principal to be bound by the acts of an agent, the authority of such agent to so bind the principal must be shown. An agent is not an agent, except within the scope of his appointment as such; and consequently the act of an agent beyond the scope of his authоrity is not an act of agency at all. Applying these well-settled principles of law to the cases cited by appellant, wе find that in the case in 9 Tex. Oiv. App., 29 S. W., supra, the court held that the act of Winthrop in stating that the appellant would owe a contractor a certain amount when he finished building two certain houses was not binding on appellant, because it affirmatively appеared from the written instrument creating his agency that Winthrop had no authority to speak for appellant on this matter. The court sаys: “The scope of such agency must be measured by the terms of the contract referred to.” And, construing said contract, as it was its duty to do, the court said: “The agency * * * must be referred to the building of houses. * * * The declaration was beyond the scope of Winthrop’s аgency, measured by the character of the business with which he was charged, and by the terms of the contract by which he was necessаrily guided in the discharge of his duties.”
In Insurance Co. v. Frazer, supra, one Harrell had taken the application of the insured for the policy upon which recovery was sought. The trial court permitted the declarations of Harrell affecting the company’s liability, mаde after the death of the insured, to be put in evidence. It does not appear that he had any connection with any
But how stands the case at bаr? Of course, in this, as in every case, the agency must be shown, and it must be made to appear by him who asserts such agency that the deсlarations offered in evidence were within the scope of such agent’s authority. That was done in this ease by proof that Bryson was the “general manager” of appellant. The undisputed evidence shows that appellant, a corporation, was еngaged in the business of buying and selling oil in San Angelo, and that Bryson was its “general manager.” No effort was made to prove any limitation of his аuthority. In the absence of such proof, what does the term “general manager” imply? “The term ‘general manager of a corрoration,’ according to the ordinary meaning of the term, indicates one who has general direction and control of the affairs of the corporation.” Railway Co. v. McVay,
Believing, as we do, that the legal question involved in this case is well settled, and that there is nо conflict between the opinion of this court in this case and that of any other of the appellate courts of this state in any other case, the motion to reconsider our judgment in overruling the motion for a rehearing herein and to certify this case to the Supreme Court is overruled.
Motion overruled.