Given, O. J.
I. The questions presented by -appellant were saved by exceptions to rulings upon defendant’s motion- for a verdict and motion for a new trial. Appellee, to- establish the alleged verbal contract, introduced evidence of certain conversations and transactions between himself and one J-ohn H'o-lden, an employe of -appellant, who- it is claimed had authority from appellant to make the alleged contract. Appellant contends that there is n-o evidence that a contract was -made, a-s alleged, and no evidence that Holden had authority from appellant to make such a contract, -and that, therefore, -the court erred in overruling defendant’s mo'ti-on for a. verdict, -and also .in overruling -defendant’s motion for a new -trial.
We first inquire whether there is evidence tending to show that the alleged verbal -contract was made. Appellee testifies upon that subject in substance a-s follows: That- on M-ay 28, 1889, he was at Gherokee, engaged in building a fence for defendant around a -sand pit, when- he received from Holden a telegram, asking him to meet him next day; -that he met Holden, when the following conversation occurred:
“He says: ‘Did you get my note?’ I says: ‘Yes.’ ‘Now,’ he says, ‘Whitman, the big job is come on. Mr. Jacobs sent me here after you, for fear you would take a contract west.’ ‘Well,’ I says, ‘Mr. H-olden, -Sullivan and me is figuring -on- it n-ow.’ ‘Well,’ he -says, ‘i-t is no -more than right that yon should fen-ce our division, because we have got you to work these last six or seven years past over this line, both east and west, and it is no more than right that you should work for us.’ Says I: ‘Mr. H-olden, I would sooner work under you, in order that, when I want material under you, I -can always ge't 'it, -and out west here they aare very slack -about getting a man material.’ -Says I: ‘Bo-w many miles have you got ■for -me?’ S-ays he: ‘W-e -have -got one hundred and fifty for you. Gan you do it this season?’ ‘This season? I can-.’ ‘Gome in here as quick as possible, and get ready, a-s X want you to commence as soon a-s the tenth — not later than the fifteenth — of June, 1889.’ S-ays he: ‘How many men will you start with?’ Says i: ‘I will start with twenty, and will run -for a week, and I will figure up at the end -of the week, and, if I ain’t going fast enough, I will put on' ten more, and run -a thirty-handed g-an-g.’ ‘How -many hand [739]*739■cars will you want to start with?’ Says I: T will start with two.’ Says he: ‘Your own hand car is a't Pat Sullivan’s, at Webster City, 'ain’t it?’ Says I: Yes; it was there when I left.’ Says he: Tt is there now, and I will have another one put In by the time you are ready.’ That was about all ‘that was said at that time between me 'and Mr. Holden.” Witness afterward stated that iHolden said that the one -hundred and fifty miles would be from Ft. Dodge to Waterloo, 'and by the branch' -to Lyle. Concede that John Holden had authority from appellant to contract for -this fence, and we think that there was in this evidence such a showing of ■the 'contract alleged as that issue was properly -submitted to the jury. It is true the contract as stated by appellee is lacking in many of the details tb-at are usually found in a contract of such importance, but this is explained somewhat by the relations of the parties, a-s w-i'll hereafter apear.
U-pon the issue as to Holden’s authority, there is no direct evidence that he bad -authority from the appellant to -make contracts like the one adeged, but, -on the contrary, we have the undisputed evidence of several of -appellant's officers, who were in position to know, that Holden did not have such authority. We do not understand appellee to claim that he ha-s shown general authority to Holden to make such contracts, nor express -authority to make the contract alleged. Such a claim wo-uld, we think, be without support 'in the. evidence. His -da-im ‘is, though not so alleged, that the defendant held H-olden out as having the 'authority, that appellee had a right to, and did, believe that Holden had the authority, and that, after the contract was made, the defendant recognized and ratified -it. These contentions will be better understood by first noticing' the relations -of the parties. Prior to October, 1888, this line of railway was operated by the Illinois Central Railway Company, of which Holden was an employe- for -many years in the capacity of road supervisor over the line from -a'little west of Cedar Falls to Ft Dodge. His -duties were to supervise the repairing of tracxs on his own sections only, and he had nothing to -do with 'any other part -of the road. -During the six or seven years preceding -October, 1888, the plaintiff had done the work of building and repairing right of way fences for the Minois Central Railway Company at various points along the line, sometimes constructing continuous lines of fences from one to five miles in length. There i-s evidence tending to -show that some of this work was done at the in stance 'of H-olden and of other supervisors, .and generally without any written contract. Holden continued to occupy the same position after the road came into the possesion -and control of appellant, and appellee, -as we 'have seen, was engaged in building a fence for appellant around a sand pit at Cherokee at the time it is claimed this verbal contract was made. It is probably true that, 'because -of these relations, appellee believed th-at Iioiden had authority to make the alleged contract [740]*740on behalf of this apellant. Appellant, no doubt, 'bad in contemplation in June, 1888, the erection.' of these one hundred and fifty miles of fence in compliance with the recently enacted statute in regard to fencing railroad rights of way. The evidence shows without contradiction that when fences were to be built, the order would originate from appellant’s general manager who would instruct the superintendent, and he, in turn, the road master, who would intrust supervision of it to the road supervisors, within their respective sections. The only evidence that Holden had any authority from his 'superior is the statement of appellee that Holden said: “Mr. Jacobs sent me here after you, for fear you would take the contract west.” Mr. Jacobs was appellant’s road ■master, The court instructed to the effect that the manner dn Which business had been done prior to the time that appellant became the owner of the road (October, 1888) should not be considered “in determining the liability of the defendant to the plaintiff.” No complaint is made of this instruction. It is therefore the law of the case, and takes out of it any inference that might arise as to Holden’s authority, because of the manner -in which appellee had dealt with the -agents of the Illinois Central Railway Company.
As already stated, there is no evidence of any express authority to Holden to make this -contract, but, on tbe contrary, that he had no such authority. His statement that Jacobs had sent him after the plaintiff was not even an assertion of authority to make this contract, nor could the authority be established by the declarations of Holden alone. We think it -is clear that there is an entire absence of evidence to show that Holden had authority to make a contract such as that alleged.
The facts relied -upon by appellee as constituting a ratification of the contract by appellant 'are these: Appellee says the defendant recognized the contract by sending cars to Webster City for plaintiff’s use; that the company issued an employe’s pass to the -plaintiff, -and allowed plaintiff to hire men and buy tools for tbe work, instead -of disaffirming the contract within a reasonable time.
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Given, O. J.
I. The questions presented by -appellant were saved by exceptions to rulings upon defendant’s motion- for a verdict and motion for a new trial. Appellee, to- establish the alleged verbal contract, introduced evidence of certain conversations and transactions between himself and one J-ohn H'o-lden, an employe of -appellant, who- it is claimed had authority from appellant to make the alleged contract. Appellant contends that there is n-o evidence that a contract was -made, a-s alleged, and no evidence that Holden had authority from appellant to make such a contract, -and that, therefore, -the court erred in overruling defendant’s mo'ti-on for a. verdict, -and also .in overruling -defendant’s motion for a new -trial.
We first inquire whether there is evidence tending to show that the alleged verbal -contract was made. Appellee testifies upon that subject in substance a-s follows: That- on M-ay 28, 1889, he was at Gherokee, engaged in building a fence for defendant around a -sand pit, when- he received from Holden a telegram, asking him to meet him next day; -that he met Holden, when the following conversation occurred:
“He says: ‘Did you get my note?’ I says: ‘Yes.’ ‘Now,’ he says, ‘Whitman, the big job is come on. Mr. Jacobs sent me here after you, for fear you would take a contract west.’ ‘Well,’ I says, ‘Mr. H-olden, -Sullivan and me is figuring -on- it n-ow.’ ‘Well,’ he -says, ‘i-t is no -more than right that yon should fen-ce our division, because we have got you to work these last six or seven years past over this line, both east and west, and it is no more than right that you should work for us.’ Says I: ‘Mr. H-olden, I would sooner work under you, in order that, when I want material under you, I -can always ge't 'it, -and out west here they aare very slack -about getting a man material.’ -Says I: ‘Bo-w many miles have you got ■for -me?’ S-ays he: ‘W-e -have -got one hundred and fifty for you. Gan you do it this season?’ ‘This season? I can-.’ ‘Gome in here as quick as possible, and get ready, a-s X want you to commence as soon a-s the tenth — not later than the fifteenth — of June, 1889.’ S-ays he: ‘How many men will you start with?’ Says i: ‘I will start with twenty, and will run -for a week, and I will figure up at the end -of the week, and, if I ain’t going fast enough, I will put on' ten more, and run -a thirty-handed g-an-g.’ ‘How -many hand [739]*739■cars will you want to start with?’ Says I: T will start with two.’ Says he: ‘Your own hand car is a't Pat Sullivan’s, at Webster City, 'ain’t it?’ Says I: Yes; it was there when I left.’ Says he: Tt is there now, and I will have another one put In by the time you are ready.’ That was about all ‘that was said at that time between me 'and Mr. Holden.” Witness afterward stated that iHolden said that the one -hundred and fifty miles would be from Ft. Dodge to Waterloo, 'and by the branch' -to Lyle. Concede that John Holden had authority from appellant to contract for -this fence, and we think that there was in this evidence such a showing of ■the 'contract alleged as that issue was properly -submitted to the jury. It is true the contract as stated by appellee is lacking in many of the details tb-at are usually found in a contract of such importance, but this is explained somewhat by the relations of the parties, a-s w-i'll hereafter apear.
U-pon the issue as to Holden’s authority, there is no direct evidence that he bad -authority from the appellant to -make contracts like the one adeged, but, -on the contrary, we have the undisputed evidence of several of -appellant's officers, who were in position to know, that Holden did not have such authority. We do not understand appellee to claim that he ha-s shown general authority to Holden to make such contracts, nor express -authority to make the contract alleged. Such a claim wo-uld, we think, be without support 'in the. evidence. His -da-im ‘is, though not so alleged, that the defendant held H-olden out as having the 'authority, that appellee had a right to, and did, believe that Holden had the authority, and that, after the contract was made, the defendant recognized and ratified -it. These contentions will be better understood by first noticing' the relations -of the parties. Prior to October, 1888, this line of railway was operated by the Illinois Central Railway Company, of which Holden was an employe- for -many years in the capacity of road supervisor over the line from -a'little west of Cedar Falls to Ft Dodge. His -duties were to supervise the repairing of tracxs on his own sections only, and he had nothing to -do with 'any other part -of the road. -During the six or seven years preceding -October, 1888, the plaintiff had done the work of building and repairing right of way fences for the Minois Central Railway Company at various points along the line, sometimes constructing continuous lines of fences from one to five miles in length. There i-s evidence tending to -show that some of this work was done at the in stance 'of H-olden and of other supervisors, .and generally without any written contract. Holden continued to occupy the same position after the road came into the possesion -and control of appellant, and appellee, -as we 'have seen, was engaged in building a fence for appellant around a sand pit at Cherokee at the time it is claimed this verbal contract was made. It is probably true that, 'because -of these relations, appellee believed th-at Iioiden had authority to make the alleged contract [740]*740on behalf of this apellant. Appellant, no doubt, 'bad in contemplation in June, 1888, the erection.' of these one hundred and fifty miles of fence in compliance with the recently enacted statute in regard to fencing railroad rights of way. The evidence shows without contradiction that when fences were to be built, the order would originate from appellant’s general manager who would instruct the superintendent, and he, in turn, the road master, who would intrust supervision of it to the road supervisors, within their respective sections. The only evidence that Holden had any authority from his 'superior is the statement of appellee that Holden said: “Mr. Jacobs sent me here after you, for fear you would take the contract west.” Mr. Jacobs was appellant’s road ■master, The court instructed to the effect that the manner dn Which business had been done prior to the time that appellant became the owner of the road (October, 1888) should not be considered “in determining the liability of the defendant to the plaintiff.” No complaint is made of this instruction. It is therefore the law of the case, and takes out of it any inference that might arise as to Holden’s authority, because of the manner -in which appellee had dealt with the -agents of the Illinois Central Railway Company.
As already stated, there is no evidence of any express authority to Holden to make this -contract, but, on tbe contrary, that he had no such authority. His statement that Jacobs had sent him after the plaintiff was not even an assertion of authority to make this contract, nor could the authority be established by the declarations of Holden alone. We think it -is clear that there is an entire absence of evidence to show that Holden had authority to make a contract such as that alleged.
The facts relied -upon by appellee as constituting a ratification of the contract by appellant 'are these: Appellee says the defendant recognized the contract by sending cars to Webster City for plaintiff’s use; that the company issued an employe’s pass to the -plaintiff, -and allowed plaintiff to hire men and buy tools for tbe work, instead -of disaffirming the contract within a reasonable time. We do not find 'that -any ears were sent to Webster City other than the one that the plaintiff aflready had, and the employes’ passes issued to the plaintiff have no necessary reference to this contract, bu't -are rather referable to tbe prior and subsequent employment of the plaintiff, -as will hereafter appear. Holden sent him a time card June 10, 1880, with a caution not to get his cars run into, hut this is explained by plaintiff’s being then employed -at -the sand pit at Cherokee. -
We discover no evidence whatever of any ratification 'by tbe appellant. On the contrary, it appears that appellant’s agents at all times denied the contract, and the authority of Holden to make it, and that interviews with plaintiff on the subject resulted iu appellant’s offering to give him a contract for one hundred and fifty miles of fence, upon certain conditions as to price, etc., which. [741]*741be declined. Their negotiations resulted in a written contract “being entered into between the plaintiff and M. Gilleas, superintendent of appellant's company, whereby plaintiff was to erect what right of way fence was required to inclose the road between Cedar Falls Junction and Nashua. This contract both parties fully performed. Appellee contends that he entered into this com tract to lessen the damages that resulted to him from the refusal of the appellant to allow him to construct the one hundred and fifty miles of fence. We think there is an entire absence of evidence to show that appellant accepted or ratified the alleged verbal contract, .and that this subsequent contract in> writing was entered into with the knowledge, on the part of the .plaintiff, that the defendant had at all times denied the authority of (Holden to have made the verbal contract, or that It was- liable therefor. There being no evidence of authority in Holden to make the contract, nor of a ratification thereof by the appellant, we think the court erred In not sustaining the appellant’s motion for a verdict and the motion for a new trial.
II. Appellant’s further contentionis that the verdict is “ffi express opposition to the charge of the court.” This position we think is well taken, in view of the evidence. It is difficult to see (how, under the instructions, the jury could have found that Holden (had authority to- make the contract, or that the defendant (had ratified it.
Some complaint is made of the instructions .given. It Is complained that the court erred in submitting the question of ratification, because there was no allegation to that effect. It is true plaintiff did not allege ratification, but appellant asked three instructions, in the first of Which the question of ratification is asked to be submitted. True tbis instruction was refused, but the appellant should not complain that that feature -of it was embraced in instructions given by the court. The other objections taken to instructions seem to us to be without merit, and are therefore not further noticed,
For the reasons stated, we conclude that the judgment of the district court must be reversed.