and dimensions specified, that would be reasonably well built and reasonably well adapted to accomplish what the parties expected it would accomplish, if suitably located. Whatever was necessary to make a culvert of the kind and dimensions complete, and reasonably well adapted to the purpose designed, the contract bound the appellant to do. We think the learned counsel gives the contract a much narrower construction than reason or precedent warrants. Our conclusion is, that the contract does bind the appellant to make the culvert reasonably secure; and if, to do this, required a stone foundation or any work of like nature, it was bound to do that work. It is never necessary that a party who contracts for a bridge, culvert, or the like thing, which he knows is intended for a designated place, and designed for a particular purpose, should state at full length and in minute. detail just what shall be done. The law, unless excluded by the terms of the contract, enters as a silent factor into every such contract, and binds the promisor to do the work with ordinary skill and care, so that, when complete, it shall be ordinarily well adapted to the purpose for which it was intended. The appellant, having agreed to construct and maintain a culvert at the place indicated, was bound to do so, and to make it reasonably effective for the purpose it was intended to accomplish; so that it is not excused, although accidents or natural causes may have made the work much more difficult than it was supposed it would do. It is seldom that a promisor is excused on the ground that the performance of his agreement is practically impossible; for the general rule is, that, having bound himself to do a thing not absolutely impossible in itself, he must do all incidental work necessary to make performance possible, even though it entail upon him work and expense not foreseen by him. Pol. Cont. c. 7. We think it was competent for the appellees to prove that it was practically possible to construct a permanent culvert, although we doubt whether they did not, in attempting it, assume a greater burden than the law imposes upon them. But if they did, the appellant, at all events, has no cause of complaint.

We have no doubt that it was competent for the appellees to prove the consideration of the contract. We do not regard the question upon this point as outside of the issues. We are

Proof of consideration and situation of subjectmatter.

inclined to agree with appellant's counsel that the answer to the question as to the ownership of property above the railroad was incompetent, but we cannot agree that the question to which the answer was addressed was improper. Our opinion is, that it was competent for the appellees to prove the situation of the subjectmatter of the contract and its surroundings, as well as their interest in adjoining property, and this is really all that the

question called for. As there was no motion to strike out the answer, and as the question was not in itself improper, we cannot hold that there was any available error. If, however, we are wrong in this, we could not reverse, because it is apparent that the answer did the appellant no harm.

agency.

The relation of principal and agent may be established by circumstantial evidence. We think that the evidence shows, prima facie at least, that Mr. Sherman was the chief engineer of the appellant, and, as such, had super- Proof of vision of the construction of the culvert, and the Circumstantial work connected with it. Whether he was or was evidence. not, in fact, the appellant's agent, was a matter peculiarly within its own knowledge; and proof that he was openly acting in that capacity, under such circumstances as implied knowledge on its part, made a prima facie case, and entitled the appellee to give evidence of his declaration made while actually engaged in directing or supervising the work of constructing the culvert.

aggravation

We accept, as a substantially correct statement of the general rule, counsel's assertion that a plaintiff who does not use ordinary care to prevent the aggravation of damages cannot recover for the increased loss which ordinary care Care to might have prevented; but we do not understand that prevent the rule requires the plaintiff to do the work the of damages. defendant contracted to do. We do not believe that the rule required these plaintiffs to construct the culvert, or to reconstruct the embankment; for that would compel them to do what the appellant had agreed to do. If the rule should be given a construction and application so broad as that claimed by appellant, it would reward the contract-breaker, and punish the party who had paid him the agreed compensation. Judgment affirmed.

HEREFORD

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SOUTHERN PACIFIC R. Co.

(Texas Supreme Court, Jan. 31, 1888.)

Railroad Boarding - Train Road Master Money had and received -Estoppel.-In an action against a railroad company for money had and received for plaintiff's use and benefit, it appeared that plaintiff entered into a contract by which the defendant's road-master was to furnish supplies for a boarding-train; that the boarding-train was to be run by plaintiff in the name

of the road-master; that the price of the supplies was to be deducted at the end of each month from the wages of defendant's men; that, after the roadmaster had been superseded, plaintiff entered into a contract with his successor to run the boarding-train in his own name; and that plaintiff accepted supplies thereafter, knowing them to have been shipped upon the credit of the superseded road-master. Held, that plaintiff was estopped from claiming from the railroad company money paid for the supplies shipped after the roadmaster was superseded, upon such road-master's order.

APPEAL from Jefferson County District Court.

Action against the Southern Pacific Railroad Company to recover moneys had and received by it for plaintiff's use and benefit. The facts are stated in the opinion.

GAINES, J.-This action was brought by appellant to recover the sum of $339.75, alleged to have been received by appellee for his use and benefit. He testified that in June, 1886, Facts. he was employed by one Richard Smith, then roadmaster of the defendant company, to take charge of the boarding-train on a railroad then being operated by the company. Under the regulations, the road-master had control of the boarding-train, and could board the company's hands himself, or employ some one else to do so. The keeper of the train was entitled to charge the employees fifty cents each per day for board; and at the end of the month this was retained out of their wages for his benefit. The arrangement between appellant and Smith was, that he was to manage the boarding-train for Smith, and to conduct the business in Smith's name. He testified as follows: "I was serving him, and was willing for him (Smith) to draw the money for board then due for that month. I did not consent, however, for him to have the board bills made out in his name, but expected for them to be made out in my name, and that I would sign an order for him to draw the money. end of the month of June I learned that he had had the board bills made out in his (Smith's) name, and I did not like it a bit; but I said nothing, as I was owing him, and I was under him as an employee." About the 7th of July, Smith was succeeded as road-master by one Whalen, who continued appellant as keeper of the boarding-train under substantially the same agreement as with Smith, except (as we may infer) that appellant was to manage the business in his own name and upon his own responsibility. Smith, for the defendant, testified the same facts as above stated, except that the board bills were, under his agreement with appellant, to be made out in his (Smith's) name. He also testified that he bought the groceries for the train, of Keller of Houston, and that the board bills for June did not pay them; that, after he ceased to be road-master, appellant ordered supplies of Keller, and that Keller refused to send them upon

appellant's credit; and that he, the witness, then ordered them forwarded, which was accordingly done. It further appeared that the goods came to hand in the name of Smith, and that appellant received and used them. Keller's manager testified that he would not sell goods to appellant, though he attempted to purchase of him, and that he sent the goods forward on the credit of Smith. So far as we can see from the testimony, all the supplies for July came in this way. At the end of the month, the board bills having been made out and forwarded to the company's officers, this amount was paid Keller, on Smith's order, in settlement of his account for supplies furnished appellant. The latter did not deny that when he received the goods he knew they were marked to Smith, but says he knew they were in- Plaintiff estended for him, and therefore took them. He must, topped from we think, have known also that the goods were claiming comshipped and sold on Smith's credit, and that, having pany's money. no credit himself, Smith must have had them forwarded, relying upon his right to appropriate the board bills to their payment. Even had Keller shipped the goods in Smith's name without Smith's knowledge, it would have been an act of bad faith on part of appellant, after receiving them, to repudiate the previous arrangement which had been entered into between the parties under his former employment. Clearly, according to appellant's own statement of the contract between him and Smith, the latter had the right to have the bills made out in his own name, and to collect a sufficient amount of them to pay for the supplies. Appellant's statement that he did not consent to this, but expected the bills to be made out in his own name, is inconsistent with his testimony as to the contract. He says, "This train he [meaning Smith] put me in charge of, - to run it and board the hands for him, and in his name.' Having, after Smith left, received goods he knew to have been purchased on Smith's credit, he is estopped to deny that the previous arrangement continued so far as it was necessary to enable Smith to protect himself from loss by collecting the board bills.

We do not think it necessary to consider the assignments of error in order. The testimony admitted over the objection of the defendant, taken in connection with the other evidence, tended to show a perfect defence to the action, and was therefore admissible. The court's instructions were not unfavorable to the appellant. Upon the undisputed facts in evidence, the appellee was entitled to a verdict. In such a case, a judgment will not be reversed, although there may be errors in giving or refusing instructions. We do not, however, intend to imply that there are such errors in the record before us. It is not necessary to decide that question, and we do not pass upon it. The judgment is accordingly affirmed.

PEOPLE ex rel. NEW YORK, ONTARIO, & WESTERN R. Co. et al.

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CHAPIN, Comptroller, et al., State Assessors.

(New York Court of Appeals.)

Railroad Commissioners - Salaries Apportionment. Under the New York Statute of 1882, which provides that the salaries and expenses of the board of railroad commissioners shall be apportioned among the several railroad companies, partly in proportion to net income and partly "in proportion to the length of the main track or tracks on road," where several tracks are laid between the same points, "the length " is not the quantity of numbers of miles of rail laid, but the distance between the terminal points.

APPEAL from judgment of the Supreme Court.

Denis O'Brien, Attorney-General, for Chapin and others, appellants.

John B. Kerr for respondents.

RAPALLO, J.—We do not deem it necessary to discuss the point raised by the appellants, that their determination complained of was not reviewable on certiorari, because we are satisfied that they correctly construed the statute by virtue of

Apportionment of salaries of

which the apportionment of expenses sought to be reviewed was made. Laws 1882, c. 353, sect. 13. That section provides that the salaries and expenses commissioners. of the board of railroad commissioners shall be borne by the several railroad companies according to their means, to be apportioned by the comptroller and State assessors, who shall assess upon each of said corporations "its just proportion of such expenses, one-half in proportion to its net income for the year next preceding that in which the assessment is made, and one-half in proportion to the length of the main track or tracks on road." The relators contend that where, between two terminal points, there are laid two or more parallel tracks, all of them are main tracks, and that the assessment is to be made, not according to the length of those tracks, that is, the distance between the two terminal points, but according to the aggregate of the lengths of all the rails laid on all the tracks. The appellants determined that the "length of the main track or tracks" meant the distance between two points, i.e., the length of the road; and in this we think they were right. Where several tracks are laid between the same points, and parallel with each