contract with the defendant had not been made, and, unless they were within 30 days from date, the contract would be canceled; that witness and Himpel went immediately to see Andrews, and asked him what the letter meant, and Andrews said: "I have sold the land to other parties, and your contract is canceled; you are too late"; that witness and Himpel protested against this action, but Andrews said: "No use to talk about it at all. You are too late. The land is sold"; that they could get no further satisfaction out of Andrews, and so went away.

Himpel corroborates this testimony of the plaintiff, and Schulze himself testified that the refunding to the plaintiff and Himpel of the second payment tendered by them on the contract was made by Moores in pursuance of a general order given by him that no further payments were to be received on the contract because the title to the land was in dispute; that "I gave orders to this effect to my assistant, I. R. Moores, and told purchasers of lands under like conditions at every opportunity that the company would not accept any further payments on lands of this character until the question of title had been settled, but that mean while the contracts should not be forfeited. ** I especially remember in this connection a number of sections sold to the late A. G. Cunningham. This gentleman also tendered payment on his contract, but I refused to accept it for the reasons stated. * * I had also told Himpel before (March 24, 1884)-Himpel and Mr. Neppach, to whom the contract under consideration is now assigned-what the policy of the company would be." This testimony was clearly sufficient for the jury to find in favor of the plaintiff upon the issue of the extension agreement or waiver of the time of performance by the plaintiff and Himpel of the contract made by them with the defendant for the purchase of the land in question. Counsel make a strong and persuasive argument, based upon alleged contradictions and inconsistencies in the testimony and the pleadings and the conduct of the parties, that no such agreement was made or intended to be made; but we are not authorized to review the facts to ascertain whether, in our opinion, the verdict is in harmony therewith. It is sufficient that there was competent evidence to support it.

3. Counsel argue that Schulze had no authority to act for or bind the defendant by such agreement or understanding. This was also a question for the jury, under proper instructions from the court, and there is no contention that such instructions were not given. Schulze's authority was not in writing, and there was no writing introduced in evidence fixing the nature or scope thereof. That had to be ascertained as a fact from divers and sundry items of evidence showing the general course of business in the land department of the defendant during the time Schulze acted as land agent, the authority he exercised, and the duties he performed with the knowledge and approval of the defendant. Many of the facts from which this question was to be determined were in dispute. The defendant contended that Schulze was a mere selling agent, with authority to make sales of land on specified terms and conditions, and that he had no power to make an agreement extending the time of payment by a purchaser or to waive a strict compliance with the contract. The plaintiff, on the other hand, contended that he was the general agent of the defendant, and in charge of its entire land business in Oregon,, with full power and authority to represent it in relation thereto, and make any contract with reference to the sale and conveyance of lands which might to him seem advantageous to his principal, or which the exigencies of the business might require. A vast amount of evidence, not necessary to be detailed, was offered by both parties in support of their respective contentions. It was from such testimony that the power and authority of Schulze and the nature and scope of his agency were to be ascertained and determined. The appointment or authority of an agent is a question of fact; what he may do by virtue thereof is a question of law. When the appointment and authority, real or apparent, are admitted, or are not in controversy, the court may declare whether they empower the agent to perform the particular act in question. When, however, there is a dispute as to the appointment or the authority conferred, the fact of such appointment or authority must be found by the trier of fact: Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Hardwick v. State Ins. Co. 20 Or. 547, (26 Pac. 840); Connell v. McLoughlin, 28 Or. 230 (42 Pac. 218); Long Creek Build. Assoc. v. State Ins. Co. 29 Or. 569

(46 Pac. 366); Anderson v. Adams, 43 Or. 621 (74 Pac. 215). 4. That there was sufficient evidence to support the verdict of the jury that Schulze had authority to make the contract or agreement in question under the law is hardly open for argument. The evidence showed or tended to show that he was appointed land agent of the defendant by its president, and served as such from 1878 to 1884, during which time the defendant was engaged in practically two lines of business and owned and dealt with two classes of property-the one a line of railroad from Portland to the southern part of the State, and the other the listing, selection, sale, disposition, and management of the lands granted to it by congress. The two departments were conducted separately and under different managements. The office of the land department was during a great part of the time in one building; that of the railroad proper in another. The land department was in the sole and exclusive charge of Schulze, who had under him a number of clerks and assistants, who took their orders from him. He listed and selected the lands accruing to the defendant under its grant, fixed the prices and terms at which it was to be sold, made and executed all contracts in reference thereto, and received and receipted for all moneys due on account thereof. During his term of office he thus made and executed on behalf of the defendant more than 1,200 land contracts, duplicates of which were retained by the company, and comprise five large volumes, which were introduced and admitted in evidence. He made various agreements with many of the purchasers from time to time, extending the time of payment or waiving a default for divers and sundry reasons. He was advertised extensively by the defendant in the newspapers and by circulars and maps as its land agent and in charge of its land department, and as the person to whom intending purchasers should apply. In short, he was held out as the authorized representative of the company in that respect, and transacted its entire business in relation to the acquisition, sale, and disposition of its lands. His authority and acts were never disavowed or disapproved by his principal. He testified that he had full charge of the land interests of the defendant in Oregon, made and signed all contracts for the sale thereof, fixed the terms and prices at

which the land would be sold, had charge of its selection and of all the legal business of the company in the local land office; that his authority was never questioned by the company, and he did not remember a single instance where his right to act had been brought in question, or a single act done by him which was not acquiesced in by the company; that he always held that he had full authority to make contracts relating to the disposition of the company's lands. The board of directors and officers of the defendant had knowledge of the authority Schulze was exercising, and what he was doing thereunder, for he made reports to them from time to time of the land sales made by him, and obtained their orders authorizing the execution of deeds to the purchasers. The president of the company resided in New York, and the executive head in Oregon testified that he did not remember ever having been consulted by Schulze as to the management or sale of the lands. Now, it needs no citation of authority to show that the general agent of a corporation clothed with the power thus conferred upon and exercised by Schulze to manage, sell, and dispose of its lands can bind his principal by a valid contract or agreement extending the time of payment by a purchaser of such lands or waiving a strict compliance by him with the contract in that regard.

"The rule is elementary and universal," says Mr. Justice MOORE, "that every grant of power by a principal to his agent, where no limitations are apparent, is to be construed as carrying with it, as an incident thereto, the authority to do all things proper, usual, necessary, and reasonable to carry into effect the objects and purposes sought to be accomplished by the authority conferred" Durkee v. Carr, 38 Or. 189 (63 Pac. 117), and authorities cited. That it was the natural and reasonable thing, under the circumstances, for Schulze to make the contract with the plaintiff and Himpel extending the time of payment is apparent. The company was bound by a written agreement to convey a large tract of valuable land upon the payment of the purchase price at certain designated dates and in specified amounts. They were ready and willing to make the payments as agreed upon. The controversy between the defendant and the Northern Pacific Railroad Co. put it out of the defendant's

power for the time being to comply with its contract. If they tendered the payments, it was bound to receive them or be liable to litigation for a refusal. If the payments were made as stipulated, and the money received and accepted by the company, and it should ultimately lose the land, it would not be able to comply with its contract, and therefore be liable in damages for a breach. It was to extricate the defendant from this annoying situation that the agreement was made to extend the time of payment and to waive a strict performance of the contract by plaintiff and Himpel. Such agreement was presumably to the advantage of the company, and was such as a prudent man would probably have made under the same circumstances. It was the "proper, usual, necessary, and reasonable" thing to do, and clearly within the scope and authority of an agent intrusted with the entire management and control of the land business of a corporation Johnston v. Milwaukee & W. Inv. Co. 46 Neb. 480 (64 N. W. 1100); Anderson v. Coonley, 21 Wend. 279; Pratt v. Hudson River R. Co. 21 N. Y. 305; Fishbaugh v. Spunaugle, 118 Iowa, 337 (92 N. W. 58); National Bank of Repub. v. Old Town Bank, 112 Fed. 726 (50 C. C. A. 443).

5. But it is argued that the extension contract or agreement was void because it was an oral modification of a contract within the statute of frauds. Ever since the decision of Lord ELLENBOROUGH in Cuff v. Penn, 1 Maule & S. 21, holding that a subsequent parol modification of the time of performance specified in a contract within the statute of frauds was valid, there has been much learning exhibited by judges and text-writers in the discussion of such question. The settled doctrine in England now seems to be contrary to that case, and it is now held that an agreement required by the statute of frauds to be in writing cannot be subsequently changed or modified as to the time of performance, or in any other respect, by an oral executory contract: Stead v. Dawber, 10 Ad. & El. 57; Hickman v. Haynes, L. R. 10 C. P. 598. In this country the cases are in conflict. Some of the courts, notably of Massachusetts, have followed Cuff v. Penn, making a distinction between the contract, which the statute requires to be in writing, and the time of performance, to which it is held the statute does not apply. The courts in