(Internal quotation marks omitted.) Lopez v. United States, 201 F.3d 478, 482 (D.C. Cir. 2000), quoting 1 Restatement (Second), Agency ยง 22, comment (b) (1958); see also Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635 (1936). The defendant and Christopher Komondy were married and lived together. These facts alone do not create apparent authority for him to accept written notice of the award on behalf of the defendant.
"It [is] but one circumstance to be considered bearing upon the issue." Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659 (1936). "[T]he three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking.
Hall v. Peacock Fixture Electric Co., 193 Conn. 290, 294 (1984); Beckenstein v. Potter Carrier, Inc., 191 Conn. 120 (1983); Botticello v. Stefanovicz, 177 Conn. 22, 25 (1979). The party alleging agency has the burden of proving it, L.C. Bates Co. v. Austin Nichols Co., 143 Conn. 392, 394 (1956); Cyclone Fence Co. McAviney, 121 Conn. 656, 659 (1936). The plaintiffs contend that Attorney Liebman and Sidney had apparent authority to act on Selma's behalf and to bind her in the negotiations.
3 Am.Jur.2d Agency, ยง 170 at 555. See Cyclone Fence Co. v. McAviney, 121 Conn. 656, 661, 186 A. 635 (1936); Lester v. Kinne, supra, 37 Conn. at 13-14. Finally, I fail to see how the shareholders' 1976 resolution empowering the board of directors to extend the stock options of four employees, a resolution that the board never acted upon, can be considered a ratification by the board of an unauthorized agreement between Reader and only one of the four employees.
The trier of fact has to consider all the evidence and then come to its conclusion.") "The burden of proving agency [is] on the plaintiff," Cyclone Fence Co. v. McAviney, 121 Conn. 656 (1936), and "it must be proved by a fair preponderance of the evidence." Leary v. Johnson, 159 Conn. 101, 105 (1970).
The existence of an agency relationship is a question of fact. Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 124, 374 A.2d 144 (1976); Cleaveland v. Gabriel, 149 Conn. 388, 394, 180 A.2d 749 (1962). The burden of proving agency is on the plaintiff; Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635 (1936); and it must be proven by a fair preponderance of the evidence. Leary v. Johnson, 159 Conn. 101, 105, 267 A.2d 658 (1970); Iodice v. Rusnak, 143 Conn. 244, 247, 121 A.2d 275 (1956).
One instance is insufficient to predicate Waiver in this case. Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635, and cases cited. The finding of facts does not support the conclusions that the land and building committee was entrusted with powers beyond those set forth in the articles of association; that the committee approved the location of the detached two-car garage; that the committee had the power to waive the restrictions; that the plaintiff, through the committee, waived those restrictions; or that the plaintiff was estopped from enforcing the restrictions.
The court found that Heathy was not the agent of the defendant at the time he had whatever conversation took place between him and Bates. It was the plaintiff's burden to prove agency. Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635. The rule that the knowledge of an agent is imputed to the principal applies only to such knowledge as was acquired by the agent during the existence of the agency or, having been acquired prior to the beginning of the agency, was present in the mind of the agent while he was acting for the principal or was acquired so recently as to raise a presumption that the agent still had it in mind.
Agency has to be proved by a preponderance of the evidence. Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635. The view we take of the case makes it unnecessary to consider the claimed error in a ruling on evidence.
Both ratification and adoption presuppose that the acts ratified or adopted were performed by one who purported to act on account of another. Ellison v. Jackson Water Co., 12 Cal. 542, 552; Cyclone Fence Co. v. McAviney, 121 Conn. 656, 186 A. 635; 1 Restatement, Agency, 204, ยง 85. [9] When Spencer entered into the original contract with Kraft, and when he accepted the first two payments, the corporation was not in existence, and he was acting for himself individually.