by evidence that the land was reputed to be his.47 But, that fact being otherwise proved, such evidence is admissible, in a proper case, to show notoriety and thus charge the real owner with notice. It has also been held competent for the claimant to prove that particular landmarks, such as trees, streams or lines, according to general report, constituted parts of his boundary. There is, however, some apparent conflict among the authorities upon the general subject and especially upon the last two propositions.50

$1623. Evidence to rebut or defeat.-Evidence that the possession was not exclusive or of such a nature as to sustain the claim of adverse possession is admissible to rebut or defeat such claim.51 So, evidence showing an interruption of the right or a break in the necessary continuity of possession,52 or an abandonment of possession before the necessary time has run,53 or a recognition of the owner's

1

title, is likewise admissible. Evidence of attempts to purchase or lease the land from the other party during the statutory period, is generally admissible,55 but there is some conflict on this subject, and the purchase or attempt to purchase an outstanding title, claim or interest is not always held sufficient to defeat the claim of adverse possession.56 Declarations made by the claimant tending to show that his possession was not hostile are also admissible," 57 and the same has been held as to declarations of a former occupant under whom the adverse possessor claims, showing that he entered without claim of title.58

§ 1624. Generally-Scope of chapter.-It is not proposed in this chapter to consider the substantive law of agency any farther than seems absolutely necessary to a full understanding of the rules and principles of evidence treated herein. The rights, duties and liabilities of the principal and of the agent, as between themselves and as between either or both of them and a third person, are matters that belong to the substantive law rather than to the law of evidence. But the manner of showing the relation and its extent, the kind of evidence necessary and proper to show it, or to show ratification, and the like, are matters governed, in the main at least, by rules of evidence. So, questions as to the burden of proof and the relative provinces of the court and jury, if not strictly within the domain of the law of evidence, are on the border line and will be treated in this chapter.

§ 1625. Burden of proof-Scope of evidence.-The burden of proof is, ordinarily, upon the party who seeks to establish the relation of agency;1 and it is sometimes said that the proof or evidence

Russ v. Telfener, 57 Fed. 973; 36 Pac. 820; McCarty v. Straus, 21 Anderson v. Rassmussen, 5 Wyo. 44, La. Ann. 592; Wooding v. Bradley,

must be clear. This is said to be particularly true where the agent relies upon parol or implied authority to charge real estate. In a recent case it is held that the employment or agency must be shown before statements of the alleged agent or employé are admissible against the master, and that in an action against a railroad company for the alleged wrongful act of an employé, it must be shown that the person who committed the injury was an employé. The difficulty of making such proof will not obviate the necessity of doing so, although it may, perhaps, permit of slighter evidence than might otherwise be required. In another recent case it was held that, in an action for damages caused by the defendant's vehicle colliding with that of the plaintiff, proof that the defendant's vehicle has his name on it satisfies an allegation that it was driven by his agent, and casts the burden upon the defendant to show that the driver was not his agent.5 It has also been held that, under an allegation of a contract by the principal, evidence of a contract through his authorized agent is admissible."

§ 1626. Question of law or fact.-As a general rule, the question as to whether an agency exists, and the authority of the agent, when the facts are in dispute, is a mixed question of law and fact, or a question of fact for the jury, under proper instructions from the

76 Va. 614; Duncan v. Hartman, 143 Pa. St. 595, 24 Am. St. 570; Quinlan v. Providence &c. Ins. Co., 133 N. Y. 356, 31 N. E. 31, 28 Am. St. 645; Kelly v. Strong, 68 Wis. 152, 31 N. W. 121; Mechem Agency, § 276; but see, Sears v. Daly, 43 Ore. 346, 73 Pac. 5; Montgomery v. Pacific &c. Bureau, 94 Cal. 284, 29 Pac. 640, 28 Am. St. 122; agent acting as such, where he claims he was not agent has burden of rebutting the presumption, Romans v. State, 51 Ohio St. 528, 37 N. E. 1040.

2 Stadleman v. Fitzgerald, 14 Neb. 290, 15 N. W. 234; Barrett v. Franklin, 14 R. I. 241; Hood v. Adams, 128 Mass. 207; Taylor v. Merrill, 55 Ill. 52; Hodge v. Combs, 1 Black (U. S.) 192. But it would seem that in a general sense whatever evi

dence has a tendency to prove the agency, if otherwise proper, is admissible, and though it may not be entirely clear and satisfactory the question ought usually to be left to the jury. South & N. Ala. R. Co. v. Henlein, 52 Ala. 606; Morrison v. Whiteside, 17 Md. 452, 79 Am. Dec. 661.

Union Mut. Life Ins. Co. v. Masten, 3 Fed. 881; Challoner v. Bouck, 56 Wis. 652.

Axtell v. Northern Pac. R. Co., (Idaho) 74 Pac. 1075.

5 Vonderhorst Brewing Co. v. Amrhine, (Md.) 56 Atl. 833; see also, Ryan v. Baltimore &c. R. Co., 60 Ill. App. 612.

court. But it is for the court to decide whether there is any legal evidence to establish agency, and where the facts are undisputed, or the question depends entirely on the construction of an unambiguous written contract, the question is usually one of law for the court." And in one case it is said: "If the facts constituting the agency are in dispute, so as to leave the question as to whose agent he is in doubt, then an admission may serve to assist in solving the doubt and bind the party making it. But when the facts are established, the law determines whether or not there is an agency, and no admission can change it."10

$ 1627. Evidence of agency.-The appointment of an agent may be either express or implied, and the evidence of agency is either direct or indirect. Agency is directly proved by express words of appointment, whether oral or contained in some writing. It may be indirectly established by, or may be implied from, evidence of the relative situation of the parties, or of their habit and course of dealing and intercourse; or it may be deduced from the nature of the employment or from subsequent ratification.11

$1628. Authority-How proved.-As a general rule, it may be laid down that the authority of an agent may be proved by parol evidence, either by words spoken, or by writing not under seal, or by

'Morrison v. Whiteside, 17 Md. 452, 79 Am. Dec. 661; Hankinson v. Lambard, 25 Ill. 572, 79 Am. Dec. 348; Lovell v. Williams, 125 Mass. 439;

Thomas v. Wells, 140 Mass. 517; Roberts v. Pepple, 55 Mich. 367; Commercial Un. Ins. Co. v. Elliott, (Pa. St.) 13 Atl. 970; Bradstreet Co. v. Gill, 72 Tex. 115, 13 Am. St. 768; Durrell v. Evans, 1 H. & C. 174, 31 L. J. Exch. 337; New England Mfg. Co. v. Gray, 33 Fed. 636, ratification is for the jury where there is evidence tending to prove it; Drakely v. Gregg, 8 Wall. (U. S.) 242.

Md. 5; Louisville &c. R. Co. v. Gilmer, 89 Ala. 534, 7 So. 654, 655.

'Gulick v. Grover, 33 N. J. L. 463, 97 Am. Dec. 728; see also, Supreme Tribe v. Hall, 24 Ind. App. 316, 328, 56 N. E. 780; Saving Fund Soc. v. Saving Bank, 36 Pa. St. 498, 78 Am. Dec. 390.

10 Howe v. Provident Fund Soc., 7 Ind. App. 586, 591, 34 N. E. 830.

11 Starkie Ev., §§ 55-58; Story Agency, § 45; 2 Kent Comm. 612, 613; Paley Agency, § 2; Fouck v. Wilson, 59 Ind. 93; Kaufman v. Farley Mfg. Co., 78 Iowa 679, 46 N. W. 312, 16 Am. St. 462; Duncan v. Hartman, 143 Pa. St. 595, 22 Atl. 1099, 24 Am. St. 570; Hansen v. Flint &c. R. Co., 73 Wis. 346, 41 N. W. 529, 9 Am. St. 791.