(dissenting in part).

That Turrish had no express authority to make any of the questioned transfers is conceded. Did he have implied authority? Authority to act for a corporation may be implied from its long continued acquiescence in a course of conduct pursued by an officer or other person assuming to act as its agent. Martin v. Webb, 110 U.S. 7, 14 , 3 S.Ct. 428 , 28 L.Ed. 49 ; Calvert v. Idaho Stage Co., 25 Or. 412, 414 , 36 P. 24, 25 ; Neppach v. Oregon & California R. Co., 46 Or. 374, 392 , 80 P. 482, 485 , 7 Ann.Cas. 1035. Though implied, not express, such authority is actual, not merely apparent. 2 C.J.S., Agency, §§ 91, 99, pp. 1186, 1227.

Here, we have an unchallenged finding 1 that, over a long period of years, including the period of the questioned transfers, Nehalem’s business and affairs were handled by Turrish, and that his handling of them was acquiesced in and consented to by Nehalem. There is, however, no finding, nor any evidence which would have warranted a finding, that Nehalem acquiesced in or consented to any act or thing done by Turrish otherwise than in the ordinary course of handling its business and affairs. I conclude, therefore, as did the trial court, that Turrish had implied authority to act for Nehalem, as its agent, and, as such agent, to dispose of its personal property, including its stock in defendant, in the ordinary course of handling its business and affairs, hut not otherwise. Turrish’s implied authority did not, of course, include any authority to appropriate Nehalem’s property to his own use, or to permit others to appropriate it. Wen Kroy Realty Co. v. Public National Bank & Trust Co., 260 N.Y. 84 , 183 N.E. 73 .

The trial court found that the Turrishes and Keiths did' appropriate to their own use the 3,400 shares of stock here involved. Defendant says there is no evidence that the shares were misappropriated. It is true no witness so testified, but defendant’s counsel, at the hearing before the referee, made an opening statement reading, in part, as follows;

Thus, it is seen, defendant’s counsel admitted that the questioned transfers, each and all of them, were misappropria *716 fion?- of Nehalem’s property. The admission was and is binding on defendant Oscanyan v. Winchester Repeating Arms Co., 103 U.S. 261, 263 , 26 L.Ed. 539 ; Harniska v. Dolph, 9 Cir., 133 F. 158, 159 . Since, admittedly, they were misappropriations, the transfers were not in the ordinary course of handling Nehalem’s business and affairs. I conclude that Turkish had no authority to make any of them, and that the trial court should have so found.

Defendant had the power, -and owed Nehalem the' duty, to see that no unauthorized transfer of stock owned by Nehalem ■ was made on defendant’s books. Having breached that duty by permitting unauthorized transfers of 3j400 shares of Nehalem-owned stock, defendant is liable for the value thereof. Western Union Telegraph Co. v. Davenport, 97 U.S. 369, 371 , 24 L.Ed. 1047 ; Moores v. Citizens’ National Bank, 111 U.S. 156, 166 , 4 S.Ct. 345 , 28 L.Ed. 385 ; St. Romes v. Levee Steam Cotton Press Co., 127 U.S. 614, 620 , 8 S.Ct. 1335 , 32 L.Ed. 289 ; Mackenzie v. Engelhard & Sons Co., 266 U.S. 131, 143 , 45 S.Ct, 68 , 69 L.Ed. 205 , 36 A.L.R. 416 .

The judgment, in so far as it awards recovery on account of transfers to the Turrishes and A. J. Keith, should be affirmed. In so far as it denies recovery on account of transfers ;to T, B. Keith, it should be reversed. :

Fimlings (3), (7) and (9), quoted in tlie main opinion, are not challenged by either party.

There was, in fact, no such bylaw.