Since appellants suggest the State was estopped to deny service upon the Board because of the latter agency's ostensible authority, it is pertinent to examine whether estoppel bars the State's reliance on the bar of section 581a (2) An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. Similarly, "ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess." (Civ. Code, §§ 2300, 2317; Howell v. Courtesy Chevrolet, Inc. (1971) 16 Cal.App.3d 391, 401 [ 94 Cal.Rptr. 33].) Ostensible authority is not established by the statements and representations of the agent; rather, it is created only by the acts or declarations of the principal.

Words or conduct by both principal and agent are necessary to create the relationship ...." ’ " ( Flores, at p. 588, 55 Cal.Rptr.3d 823, italics omitted; see Howell v. Courtesy Chevrolet, Inc . (1971) 16 Cal.App.3d 391, 401, 94 Cal.Rptr. 33 ( Howell ) [stating that ostensible agency requires the principal to intentionally communicate the agency relationship to the third party or to negligently cause the third party to believe that there is an agency relationship].) The burden of proving that a purported agent had the authority to act for the purported principal in a particular circumstance lies with the persons dealing with the agent.

But the existence and scope of an agency relationship cannot be based solely on a person's statements that he is an agent. Howell v. Courtesy Chevrolet, Inc., 16 Cal. App. 3d Supp. 391, 401 94 Cal. Rptr. 33, 38 (Cal. Ct. App. 1971). The complaint alleges that "at all relevant times, Sylvan representatives acted within the scope of their employment with Sylvan and Sylvan is responsible for their acts, representations and omissions made in the scope of employment."

Only at this time did Bemer learn that the helicopter's prior owner had had repeated problems with the aircraft. In Howell v. Courtesy Chevrolet, Inc., 16 Cal.App.3d 391, 94 Cal.Rptr. 33 (Cal.App.Ct. 1971), the court stated: "A vendee who has been defrauded by his vendor is entitled to a reasonable time to investigate the falsity of the representations and the time so consumed cannot be charged as unreasonable delay."

Chaparral further argues that Klepper's out-of-court statement that "They told me to sign it" is not competent evidence that he had actual authority based on the general rule that the "declarations of an agent are not admissible to prove the fact of his agency or the extent of his power as such agent." (Howell v. Courtesy Chevrolet, Inc. (1971) 16 Cal.App.3d 391, 401.) Chaparral notes that over a century of law has held such declarations to be inadmissible.

While the declarations of the principal are admissible to prove the relationship (ibid.), "the declarations of an agent are not admissible to prove the fact of his agency or the extent of his power as such agent. [Citations.]" (Howell v. Courtesy Chevrolet, Inc. (1971) 16 Cal.App.3d 391, 401.) Only the agents testimony "as a witness is admissible to prove either authorization or ratification."

It thus does not appear that any actions of Murai or Navarro, as principals, were relied upon by Lucas and Jorge Reyes to create the impression that RIPCO was the agent for the ranchers for purposes of insuring overall camp safety. (See Howell v. Courtesy Chevrolet, Inc. (1971) 16 Cal.App.3d 391, 401 [ 94 Cal.Rptr. 33] .) (8) Although a principal is liable for the torts of an agent under the doctrine of respondeat superior, "for this liability to be imposed on the innocent principal, the agent's tort must have been committed during the course and scope of his employment. [Citation.

Whether there has been a waiver here is a question of fact to be determined in light of all the evidence. ( Howell v. Courtesy Chevrolet, Inc. (1971) 16 Cal.App.3d 391, 405 [ 94 Cal.Rptr. 33]; O'Connell v. Weitzman (1959) 168 Cal.App.2d 400, 404 [ 336 P.2d 592].) As we have previously noted, the lower court did consider appellant's evidence of waiver.

It is created only by the acts or declarations of the principal. ( Howell v. Courtesy Chevrolet, Inc. (1971) 16 Cal.App.3d 391, 401 [ 94 Cal.Rptr. 33]; Morse v. Pacific Gas Elec. Co. (1957) 152 Cal.App.2d 854, 857 [ 314 P.2d 192].) Moreover, it is well established that before recovery may be had against a principal for the act of an ostensible agent, the third person in relying on the agent's apparent authority must not be guilty of negligence.

Van Meter v. Bent Constr. Co., 46 Cal. 2d 588, 595 (1956) (emphasis added). See also Howell v. Courtesy Chevrolet, Inc., 16 Cal. App. 3d 391, 403 (2d Dist. 1971) ("[w]here one is justified in relying, and in fact does rely, upon false representations, his right of action is not destroyed because means of knowledge were open to him. In such a case, no duty in law is devolved upon him to employ such means of knowledge. . . .") (citation omitted).