that he knew of. The next he heard of Haw- to me." He testified he had never seen kins was at Childress. He heard this either through Mr. or Mrs. Holmes. There was then something said about recalling him from Childress, and he thinks it was Mr. Holmes that mentioned that. At this point he testified: "I came into the office about the time Mr. Holmes finished a telephone conversation with some one up here (Childress), and he told me he had told whoever he had talked to up here to take the car and put it in the garage, and that this man at this end of the line said there was a chance to sell it, and he told this man here to put it in the garage, or if it was sold to have the check or draft made out to M. A. Holmes." A day or two before Holmes 'phoned, he said: "He thought he would go after the car, or that he had gotten a letter from Hawkins, or perhaps a telegram, saying he would be in with the car in a day or two, with some prospects. Holmes said he would be in with the car and two or three men he thought he would sell cars to. Hawkins was in Childress at that time, I believe." This witness testified the duties of a demonstrator was to go out and get hold of a man who looked like he wanted an automobile and to either bring him in or sell him, or both. He also stated: "It was customary, while I was working for Mr. Holmes, for him or me, and for other parties working for him, to go out and bring in prospects and sell them at the office. If we could not sell them the model we had out and thought we could land them, we would bring them to the office. If they liked the model we had out, we would sell it to them." He further stated he (witness) had no authority to sell except for cash, unless he got permission from the office. "I frequently took in old cars when the trade was satisfactory to Mr. Holmes. Whenever he said it was all right, I took in old cars on new ones. So far as my knowledge of the automobile business goes, it is the usual and customary way of placing cars, where the customer requires it and the conditions necessary to make a trade, take an old car and make a reasonable value on it where you can get the old car at a price you can turn it quickly for cash and enough cash for the new car." The appellee testified that he had seen the car for some time previous to its purchase, in and around Childress. The week previous to the time he traded for the car Hawkins came to his place with the car in company with Mr. Knight, the local agent for the Jackson car at Childress, and two other parties, and showed him the car. In the next week after the above visit Hawkins brought the car down to his place and they traded. He paid $950 cash for the car; that is, he paid $900 cash to Hawkins and reserved back $50 which was deposited in the bank until he should receive some repairs from the agency at Ft. Worth and put in on the trade his old E. M. F. car. This and the money was the consideration for the auto in question. In answer to what Hawkins represented as to his being the agent and demonstrator for the car, he answered: "He said he Holmes prior to the trade or had any conversation with him or did any business with him. On the Monday following his purchase, the week before, he had a talk with Holmes in Childress at that time. Holmes said Hawkins was a demonstrator. When he bought the car he did not know Holmes was the owner. Hawkins told him he was the demonstrator of the car. "I bought the car thinking he (Hawkins) was the agent for the car. You ask me if I did not think he owned it? I do not know what you might call it. I thought I was buying from the right man. Q. The man who owned it? A. Yes, and that is the reason I bought it. You ask me sir; I thought he was a member of the outfit, if it is not a fact I did not buy it relying on his representation that he was the agent? I will say that he made me think he was part of the firm. I thought then for that reason that I was buying it from the owner, and acting on that I did buy it. Up to that time Holmes had never done any act that had led me to believe this man Hawkins was the agent. He had never had any transaction with me to cause me to believe to cause me to believe that. I never knew him that, and he never made any statement to me at all before that time and did not know him until after I bought the car." In one portion of his testimony, on direct examination, he said that he bought the car because he thought Hawkins was the agent of Holmes, which was one of the reasons for the purchase. On redirect examination he testified: Hawkins said "he was a part owner of the firm down there. I relied on his statement, and what I saw and observed, and thought he had authority to sell the car." Mrs. Caroline Holmes, the wife of the appellant, testified that her occupation was that of a housekeeper and assisting her husband in his business of selling automobiles; that the car in question, as she understood, was her husband's, and if it had ever been sold she did not know it; that she knew J. A. Hawkins and had had some business transactions with him in reference to the car in question; that after he had taken the car she learned that he was in Childress, Tex., by a draft drawn on them indorsed by Knight for $25. She says she paid the draft on the indorsement of Knight and told Mr. Knight not to indorse any more drafts for Hawkins; that she never authorized Hawkins to sell or dispose of in any manner the automobile in question to anybody, and did not authorize its sale to the appellee, and that when she learned that Hawkins was in Childress with the car she 'phoned him some two or three times relative to the car and tried to get him to return it, and at last told him to place the car in some garage subject to the order of John Knight, the local distributor. Her husband was not at home, and she did not know what else to do. She testified that there was no expense bill paid for Hawkins prior to his going to Childress, but that she did pay one such expense bill by draft for $25. She testified that if "I heard Mr. Holmes tell Mr. Knight he could sell the car to some person living in Childress, and if Knight did not make that sale for him to put the car in the garage; that he did not want Hawkins running it or making any more bills, and if Knight did sell the car to get the draft and send it to Mr. Holmes. Mr. Holmes' instructions were that, if Mr. Knight did not sell the car, for him (Knight) to leave it in the garage and Mr. Holmes would go for it. I tried to get Mr. Hawkins immediately after I got the draft to bring the car back" -and that she did not know that Hawkins was trying to make a sale in Childress or any other place. ress she did not know it, but she did know I He says he left for Michigan on the 23d that Knight was the local distributor there, or 24th of April, and returned home about and she knew of no authority given Hawkins the 8th of May, and learned at that time to demonstrate in Childress county. from his wife that Hawkins was in Childress. That he called Hawkins over the 'phone, but did not get him when he first called, but did get him the next day. That he called through Mr. Knight, who was selling the Jackson car at that place. Knight told him that Hawkins was there, but he did not tell the witness that he was trying to sell the car. He did not talk to him much. That he told Knight not to let Hawkins have anything more to do with the car and told him he did not want Hawkins to have the car. Hawkins said, "All right." Hawkins and Knight were there together at the time, and he then had a conversation with Hawkins, who said he would put the car in the garage, and he told Hawkins that he and his wife would come up Saturday night and drive the car back Sunday. That he did not know when the car was sold after that time. The following Sunday he went to Childress. In the meantime he received a letter from a Mr. Hughes at Quanah, stating that Hawkins had sold the car. On receipt of the letter, he 'phoned Knight, who said the car was in the garage. "I told him there must be a mistake about it and about receiving the letter." Knight asked him to hold the 'phone until he could go and see about it, and he came back and said it was gone. He says the conversation he had with Knight in regard to a good prospect for selling the car was not after it had been sold; that that conversation was just a week previous to the last conversation over the 'phone about the car being gone. that time he told me he had a man he thought he could sell the car to, and he told me who it was, but I do not remember the name." The facts in this case further show that the trade between Hawkins and appellee was made about the 11th day of May, and that the letter from Hughes to appellant, notifying him of the sale, was received by appellant about the 16th of May, when he called up Knight making further inquiry about the car. The appellant himself testified that he gave no authority to Hawkins to sell the car to Tyner or any one else; that the last time he saw the car before he saw it in Tyner's possession was the 20th or 25th of April. When Hawkins left with the car, he had known him about two weeks. He testified: That he or his wife did not employ Hawkins. "My wife usually managed the business while I was gone, and I was gone some of the time. No, she did not manage it during the month of April, 1913." That he let Hawkins take the car, and his wife knew nothing about it. The witness stated he let Hawkins have the car to go up the Denver road to Decatur and Alvord to bring some prospective purchasers in the car to Ft. Worth. He states that Mr. Abbott says when Hawkins took the car it was the 20th, but that he was under the impression that it was a week later, but he might be mistaken as to the date. He states that he heard of Hawkins at Childress on the 8th or 9th of May, and that he learned this upon his return from Michigan to Ft. Worth. That he had gone to see his mother, who was sick in Michigan, and that his wife had charge of the office during the time he was absent from the city. "My wife was in charge of the office while I was gone. She was my duly authorized agent during my absence. I have discussed this matter with her. I have not seen letters of messages to her from Hawkins. She simply looked after the business while I was away." He says that he never employed Hawkins for any purpose except to unload the cars, but that he let him have the car to go up after prospective purchasers, and that he did not take the car without his consent. After his return from Michigan he stated: "I had a conversation over the 'phone with John Knight of Childress, and he told me he had the prospect for selling one car. He did not say he had a prospect for selling more than one. I did not tell him at that time to go ahead and sell this particular car that Hawkins had up here. I told him I had given Hawkins instructions on Saturday night to put the car in the garage and leave it there, and he (Knight) said he thought I was making a mistake, and I said 'If you can sell this car, all right, and, if you do, get a draft made out to me and send it to me, but I don't want Hawkins to have anything "At [2-6] The relation of agency does not depend upon express appointment, but it must be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case. If, from the facts and circumstances, it appears that there was at least an implied intention to create the relation, it will by implication be held to exist. The appellee has not, it may be conceded, proved an express agency, constituting Hawkins appellant's agent; that is as made by himself; but we believe the facts and circumstances raise an implied intention to create the relation, and the court would not have been warranted in instructwould not have been warranted in instructing a verdict or setting aside the verdict on the ground alone that no agency was shown, or no sufficient evidence of agency shown. Mechem on Agency (2d Ed.) vol. 1, § 708; Co. v. Jones, 82 Tex. 156, 17 S. W. 534; Bradstreet v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768. Again, we think the fact will warrant the inference that the wife of appellant was in charge and management of his business in the absence of appellant. True, he seeks by his testimony to limit her authority to employing hands to unload cars, etc.; but all the parties agree that she controlled the office and business in the absence of her husband. He was absent when Hawkins was employed by the wife, if Abbott's statement is correct, and while she was in the management of the business. A general agent for the management of the business has authority coextensive in scope with the business intrusted to him to do what is usual and customary to do in the business. Due consideration should be given to the character of the business, the manner in which it is usual to carry it on, and the manner in which it has been previously carried on. Collins v. Cooper, 65 Tex. 460; Wright v. Blackwood, 57 Tex. 644. If the acts done are reasonably necessary to keep the same a going concern, etc. Sun Printing & Pub. Ass'n v. Moore, 183 U. S. 642, 22 Sup. Ct. 240, 46 L. Ed. 366. The nature of appellant's business required the employment of salesmen to go out over the country in search of purchasers and to sell and demonstrate the cars. Such an agency, in order to succeed as a going concern, required such employment. If the facts and circumstances will warrant the inference that there was an implied intention to authorize Hawkins to make the sale of the car by the appellant, or if in the absence of appellant his wife was in management of the business and she then employed Hawkins to sell the car and such act was usual and customary in the conduct of such business or reasonably necessary to carry it on, then Hawkins would be such an agent. If Hawkins was such agent, by implication or by employment, of the wife, and if the sale to appellee was otherwise unobjectionable, the title passed to him, whether he knew of such agency or not. 2 Corpus Juris, § 215, on page 576; Kempner v. Dillard, 100 Tex. 505, 101 S. W. 437, 123 Am. St. Rep. 822; Hamm v. Drew, 83 Tex. 77, 18 S. W. 434; Hackett v. Van Frank, 105 Mo. App. 384, 79 S. W. 1013; Simpkins on Contract and Sale (3d Ed.) p. 1049. [7-9] Where the act, by which it is sought to bind the principal, was within the authority actually conferred by the principal, whether expressly or impliedly, it is not necessary for a third party to show that he had knowledge of that authority and acted on the faith of it; for, if the facts and circumstances justified the implication of an agency, then the act of the agent is the act of the principal. This should not be confused with the principles which govern an unauthorized act of the agent, for then, if we understand correctly, such act must be such that the think agency by estoppel is in this case. Estoppel can only be relied on when the third party knew and relied upon the words or conduct of the principal. It is essential, in order to estop a man to deny the authority of another to act for him, that his representations of authority, whether by word or by conduct, should have been believed and relied on in good faith by the person asserting the estoppel. Mechem on Agency, vol. 1, 722 et seq.; 2 Corpus Juris, § 73, Agency, p. 465; Simpkins, Contract and Sales (3d Ed.) p. 1012 et seq. The facts in this case negative any reliance by appellee upon the words or acts of appellant. He did not know him; never saw him; knew nothing of his business. The mere possession of the car by Hawkins was not sufficient to invoke estoppel. Assuming the testimony is sufficient to support a finding that there was an implied authority in Hawkins to sell the car or to support the finding that the wife, as manager, in the absence of her husband, had authority to employ salesmen, and that she did so employ Hawkins, the question yet remains: Had he authority to sell for anything but cash? In other words, could he barter the car? As a general rule, a power to sell does not include the power to barter. Stember v. Keene, 152 S. W. 663; Griffith v. Morrison, 58 Tex. 46; Fitzhugh v. Franco, etc., 81 Tex. 306, 16 S. W. 1078; Equitable Life, etc., v. Cole, 13 Tex. Civ. App. 486, 35 S. W. 720; Low v. Moore, 31 Tex. Civ. App. 460, 72 S. W. 421. There is no implied authority to exchange or barter property in the contract of agency to sell. Mechem on Agency (2d Ed.) vol. 1, § 895; Kearns v. Nickse, 80 Conn. 23, 66 Atl. 779, 10 L. R. A. (N. S.) 1118, 10 Ann. Cas. 420. [10] In determining the question of apparent authority, the character of the service, together with the usual practice of agents in such employment, may be looked to, and the agent is held to have implied authority to do all those acts naturally and ordinarily done in such cases, which are reasonably necessary and proper to be done. Mechem on Agency, vol. 1, § 715. The appellee in this case pleaded authority to sell, such as was within the ordinary and customary authority. As above suggested, the law will not imply authority to barter. Clearly the evidence does not raise such authority in the implied agency in this case. On the other hand, it is shown that no exchange was authorized by Holmes to be made by his agents without being submitted to him for approval. The evidence of Abbott is not sufficient to establish a custom or usage. He only purported to state in so far as he knew, it was the custom, etc. He did not say he knew the custom. [11-13] A usage or custom to affect the agent's power must be shown by clear and satisfactory evidence and must have existed for a length of time so as to become widely and generally known, such as will warrant For the reasons above suggested, the case will be reversed and remanded. GRISHAM et al. v. WARD et al. (No. 8251.) (Court of Civil Appeals of Texas. Ft. Worth. Oct. 30, 1915.) view at the time of appointing the agent. I think were properly admitted under the facts Mechem on Agency, vol. 1, § 716; Wootters of this case. v. Kaufman, 67 Tex. 488, 3 S. W. 465. In this case there was no allegation that the exchange of property by the agent was the usage or custom known or practiced by agents generally. This must be alleged. We do not think the facts in this case, or the law, authorized the appellee to assume that Hawkins had authority to exchange the car for an old one. In this exchange he acted at his peril, and he was bound to take notice of the assumed agent's authority. Baker v. Kellett, etc., 84 S. W. 661; Sackville v. Storey, 149 S. W. 239. On this ground we think the court should have granted a new trial. [14] We are not inclined to believe that the evidence in this case conclusively shows that appellant revoked the authority of Hawkins prior to the sale of the car. After he learned Hawkins was at Childress with the car, and after he was informed of the proposed purchaser, he instructed that if it was sold to send the draft to him. For a week he did nothing about the car, and not then until he received a letter from Hughes. The mere fact that he directed the car to be placed in the garage did not necessarily evidence the fact that he revoked the power to sell the car. Appellee, as is shown by the testimony, was evidently the proposed purKnight and Hawkins had visited him previously thereto with the car, and it may well be inferred this was the purchase to whom Knight referred when he informed appellant he was making a mistake. At any rate, when so admonished by Knight, he directed the sale of the car and if made to send him the draft. The evidence is not conclusive in our judgment that appellant revoked the authority of Hawkins to sell the car, if any such was granted him, before the sale to appellee. chaser. 1. EXECUTION 201-CLAIMS BY THIRD PERSONS-ISSUES AND QUESTIONS DETERMINA BLE. On the trial of a claim by third persons to property levied upon under an execution, there was no valid objection to the enforcement of an agreement by the claimants to pay the judgments by virtue of which the executions were issued by the delivery of the property levied upon at a specified price. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 581, 582; Dec. Dig. 2. COMPROMISE AND SETTLEMENT SIDERATION-SUFFICIENCY. 201.] 6-CON ing with him as members of his family, and Where a judgment debtor's sons were livthere was support for the judgment creditor's claim that hay levied upon, claimed by the sons, was the property of the judgment debtor, an agreement by the sons to pay the judgments by the delivery of the hay at a price exceeding its market price was not without consideration, since the mutual promises of the parties to thus them constituted a sufficient consideration, as settle the legal controversies existing between agreements for the compromise and settlement of disputes are favorably regarded, and are supported not only as beneficial in themselves, but as conducive to peace and harmony. [Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. 6.] 3. EXECUTION 184-CLAIMS BY THIRD PERSONS-AMENDMENT OF CLAIM. that property levied upon under execution was Where, though a claimant's oath alleging the property of the claimant and his minor brother did not specifically aver that he was actself, this was evident on the face of the paper, ing for his minor brother as well as for himthe court did not err in permitting an amendment so as to include a specific allegation that in making the claim he was also acting for his brother. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 549-551; Dec. Dig. 184.] Appeal from Nolan County Court; John H. Cochran, Jr., Judge. Proceeding on a claim by J. L. Ward and another to property levied upon under executions in favor of R. N. Grisham and others. From a judgment in favor of the claimants, the execution creditors appeal. Reversed and remanded. It will not be necessary to discuss the other assignments. However, we think the charge of the court is subject to some of the criticisms made by appellant, as that it assumed the wife was the agent of appellant; and with reference to that part which instructed the jury if they found the car was sold for the consideration he did sell it for, or without any limitation as to what the consideration should be, etc. The law fixes the limitation for the consideration of the R. N. Grisham, and J. S. Grisham, both of car as cash, not barter nor trade. We think Sweetwater, for appellants. Beall & Doutthe court should not have charged on estop-hit, of Sweetwater, and E. R. Spencer, for pel, and that the fifth paragraph of his charge was therefore error. We believe that he should have excluded the testimony of Abbott, complained of in the twenty-seventh assignment of error, for the reasons heretofore suggested by us. The other exceptions to the testimony of the declarations made by Hawkins, with reference to his agency, we appellees. CONNER, C. J. On the 7th day of December appellants R. N. Grisham, J. J. Monday, and Mrs. J. F. Eidson caused the levy of several writs of execution in their favor upon 750 bales of hay as the property of the judgment debtor, J. W. Ward, the value of the property so seized being fixed by the sheriff at $262.50. On December 12th thereafter appellee J. L. Ward, for himself and minor brother, W. H. Ward, presented to the county court a claimant's oath and bond, alleging that the hay levied upon was the joint property of the claimants. Thereafter issues in writing were presented by the respective parties for the trial of the right to the property under the title of our statutes relating to that subject (See Vernon's Sayles' Texas Civil Statutes, title 129), and the case went to trial before the judge without the intervention of a jury, and resulted in a judgment in favor of appellees J. L. Ward and W. H. Ward. From this judgment appellants have duly prosecuted an appeal. [1, 2] Among other pleadings presented by appellants was a special plea to the effect that, on or about the 14th day of December, 1914, J. L. Ward claimed the hay as his own, but agreed with appellant R. N. Grisham, acting for himself and the other appellants, that he, J. L. Ward, would pay off and discharge the judgments by virtue of which the executions had issued by the delivery to Grisham of hay at the price of 65 cents per bale. It was alleged that Grisham, for himself and other appellants, assented to so receive said hay and discharge the judgment at the price per bale stated, notwithstanding the fact that the market price of the hay was but 35 cents per bale. The prayer of the plea was to the effect that, if upon the trial it should be found that J. L. Ward owned the hay, or any part thereof, the agreement might be enforced. The court sustained exceptions to this plea, and refused to hear proof in its support, to which action of the court appellants have assigned error. Under the circumstances alleged we see no valid objection to the enforcement of this plea. The mutual promises of the parties to thus settle the legal controversies existing between them would seem to constitute a sufficient consideration for the agreement. See Hilliard v. White, 31 S. W. 553; Little v. Allen, 56 Tex. 133. Indeed, the agreement is not attacked on the ground of a want of consideration, and no other sufficient objection to its enforcement occurs to us, or has been presented. Agreements for the compromise and settlement of disputes are favorably was in fact owned by J. W. Ward, the father, was not without at least circumstantial evidence in its support. We conclude that under the circumstances the court erred in the particulars indicated. [3] In the original oath made and filed by J. L. Ward, it was not specifically averred that J. L. Ward was acting for the minor, W. H. Ward. The writing, however, declared that the hay levied upon was the property of J. L. Ward and W. H. Ward, and it is evident on the face of the paper that J. L. Ward was acting for his brother. The action of the court, therefore, in later permitting an amendment of the oath so as to include a specific allegation that J. L. Ward in making the claim was acting also for his brother, W. H. Ward, cannot be said to constitute error. We find nothing in other assignments requiring discussion, but for the error first noted it is ordered that the judgment be reversed, and the cause remanded. ELKINS v. HOULIHAN et al. (No. 8259.) APPEAL AND ERROR 784 — TAKING APPEAL -NOTICE OF APPEAL-STATUTES. Under Vernon's Sayles' Ann. Civ. St. 1914, art. 2084, providing that an appeal may be takrendered by notice of appeal in open court withen during the term at which final judgment is in 2 days thereafter or 2 days after judgment overruling a motion for a new trial, and by filing an appeal bond as required by law within 20 days after the term, appellant, whose notice of appeal was not given before the last day of the term, and who filed no appeal bond within 20 days after the expiration of the term or at any time did not perfect his appeal so as to give the Court of Civil Appeals jurisdiction, and it will be dismissed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3126, 3127; Dec. Dig. 784.] Appeal from Cooke County Court; R. V. Bell, Judge. Action between R. P. Elkins and J. J. Houlihan and others. Judgment for Houlihan and others, and Elkins appeals. Dismissed. Stuart, Bell & Moore, of Gainesville, for appellant. Davis & Davis and C. R. Pearman, all of Gainesville, for appellees. On Motion to Dismiss Appeal. regarded both in courts of law and equity, and are supported, not only as beneficial in themselves, but as conducive to peace and harmony. See 8 Cyc. 535; 5 Ruling Case Law, § 23, bottom page 901; Taylor Co. v. BUCK, J. Appellees have filed their moBaines Gro. Co., 31 Tex. Civ. App. 385, 72 tion to dismiss this appeal, predicated upon S. W. 260. This principle, we think, has the following grounds, to wit: First, that proper application under the circumstances the judgment attempted to be appealed from shown here. It appears that J. L. Ward and was rendered December 31, 1914; second, W. H. Ward, the claimants, were sons of J. that the December term of the county court W. Ward, the defendant in the executions; of Cooke county ended on the day precedthat the sons lived with the father as con- ing the first Monday in January, 1915, which stituent members of the family, and appel- was January 4th of that year; third, that lants' claim that the property levied upon the motion for new trial was not acted upon |