Page:Federal Reporter, 1st Series, Volume 8.djvu/804

790 FEDERAL REPORTER. �"If one witness were positively to swear that he saw or heard a fact, and another were to swear that he was present but did not hear or see it, and the witnesses were equally faithworthy, the general principle would, in ordinary cases, create a preponderance in favor of the affirmative; for it would usually happen that a witness who swore positively, minutely, and circumstantially, to a fact which was untrue, would be gnilty of perjury; but it would by no means follow that a witness who swore negatively would be perjured, although the affirmative were true," etc. �This rule was applicable to a portion of the evidence of G. M. Paine, who testified about the conversation had with plaintiff at Mer- rillon, in November, 1877, when called to contradict the latter, and also to the evidence of Freeman, who was called to contradict Idison. �Second. The next errer alleged is in the following instruction to the jury: �" There is no evidence of a direct appointment of Idison as the agent of C. N. Paine & Co., the defendants, giving him, in express language, authority to sell the logs mentioned in the contraet, and the logs were not iu lus posses- sion or under his immediate control at the time the contraet was entered into. The plaintiff claims that the fact that Idison was the agent of defendants for the sale of their manufactured lumber outside of the state of Wisconsin, and the further fact that he had purchased sawed lumber from the plaintifE, and had traded for or purchased lumber — or finishing lumber, as it is called— from other persons for his employers, all of which transactions and aots had been recognized by the defendants, gave an implied authority to sell the logs mentioned in the contraet, and to enter into it. Such is not the law. Authority in Idison to sign the defendants* name to the contraet cannot be implied simply from the acts and transactions which I have detailed to you and which are in evidence. It is necessary for the plaintiff to show the acts of Idison with reference to this particular contraet, and a recognition of these acts on the part of the defendants, in order to prove that he had authority to sell the logs and to sign the defendants' name to the contraet for their sale. ihe fact that he was their traveling agent for the sale of manufactured lum- ber, and that he-contracted with other persons for the purchase from the defendants of their sawed lumber, is not sufflcient evidence for you to imply that he had authority to enter into this particular contraet. The acts of Idi- son with reference to these logs, and the recognition of them on the part of the defendants, must be proved in order to establish his agency to sell the logs and to enter into this contraet in the flrst instance." �I am satisfied this instruction f airly presented the case. An agency is creaied by (direct) express appointment, or it may be inferred from the relation of theparties, and the nature of the eraployment, with- out proof of any express appointment. So says Chancellor Kent, vol. 2, p. 613, (4th Ed.) . This question controlled the verdict : Was the contraet for the sale ��� �