¶1Tlie opinion of tlie Court was delivered by
¶2This is an action by a succession representative against the sureties on the official bond of Ms removed predecessor, who died thoroughly insolvent.
¶3The suit was originally for some $45,101 40, being the amount of the judgment obtained against the succession of the deceased administrator, but, owing to credits subsequently acknowledged, tlie claim is reduced to $10,609 36.
¶4*658Tlie sureties do not contest their liability to a certain extent. They rely on a compromise alleged to have been entered into, since suit, under which they claim that the only judgment which can be rendered against seven of them is one for $10,500 m solido; judgment, however, to go against the succession of one of them, T. Purcell, for $1500, independently.
¶5From a judgment of non suit both parties have appealed.
¶6On the trial the defendants introduced in evidence the act of compromise asserted by them. In rebuttal the plaintiff offered to prove that the person representing himself therein as agent had not been clothed with the power of entering into suoh a. contract and had exceeded what authority had been conferred on him. The evidence having been excluded, bills were reserved to the rulings of the district judge.
¶7However much it may be claimed as a legal proposition, that the acts of the agent bind the principal, this can only be truly said when the former acts within the scope of his mandate.
¶8Where the power is not exhibited at the time of the contract with the agent and does not form part of it, it is cle.ar that the acts of the latter cannot conclude his constituent, who at all times enjoys the privilege of showing by competent evidence, either that nis instructions were not carried out or have been transgressed.
¶9Whoever deals with an agent is put on his guard by the very fact and does so at his risk. It is his right and duty to inquire into and ascertain Ihe nature and extent of the powers of the agent and to determine whether the act or contract about to be consummated comes within the province of the agency and will or not bind the principal.
¶10If the power exhibited is sufficient, the principal will not be permitted to gainsay the acts of his representative, but if it is not, he is warranted in repudiating them.
¶11In the present instance, the written instrument termed the “compromise” does not show on its face that Mr. C. J. Boatner, who therein represented the plaintiff, acted in his professional capacity. So that the question of presumptive authority to compromise does not arise and cannot be determined. He there appears to have acted in his in dividual capacity only and as an ordinary agent usually does.
¶12The law requires that the power to compromise be conferred by specially delegated authority. R. C. C. 2966.
¶13Strictly, the defendants should have themselves established the authority of the agent; but as the plaintiff does not deny an agency *659and proposes to prove that the powers which he delegated have not been followed, but, on the contrary, were departed from, it is nothing but just to permit him to do so.
¶14We think the rejected evidence should have been allowed.
¶15It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now ordered that the case be remanded to the lower court with directions to receive the excluded evidence, and to be further proceeded with as the law provides,—the costs of appeal to be paid by the defendants and appellants, those of the lower court to abide the final determination of the suit.
¶16On Rehearing.
¶17Considering that the proceedings herein, including and subsequent to the filing of the amended petition, are evidently based on the written compromise, which is either valid as a whole or not at all, we will not hold the defendants subject to harm from their neglect to prove authority, but adhere to our original decree herein, which we think is conducive to justice and remains undisturbed.