company. Stokes v. New Jersey Pottery Co., 46 N. J. L. (17 Vr.) 237; s. C., 6 Am. & Eng. Corp. Cas. 240. And the president of a manufacturing corporation has no implied authority to commence an action in the company's name. Ashuelot Manuf. Co. v. Marsh, 55 Mass. (1 Cush.) 507.

Where President is also Superintendent or Financial Agent. - Where, however, the president is also the superintendent and general agent of the company, he is authorized to make any contract which is within the general scope of the company's business, and necessary to the proper conduct of the same. Seeley v. San Jose, I. M. & L. Co., 59 Cal. 22; Castle v. Belfast Foundry Co., 72 Me. 167; Lee v. Pittsburgh, C. & M. Co., 56 How. (N. Y.) Pr. 373. Thus, the president of a manufacturing company, who is also superintendent, and has a general authority to contract by parol for making or selling its manufactured goods, has also authority to authorize the termination and release of such a contract. Indianapolis Rolling Mill Co. v. St. Louis, F. S. & W. R. Co., 120 U. S. 256; bk. 230, L. ed. 639.

If he is the company's financial officer, he may receive payment of a judgment in favor of the corporation, and may execute and deliver a satisfaction piece. Booth v. Farmers' & Mechanics' Nat. Bank, 50 N. Y. 396.

Railroads Construction of Road. In the case of Griffith v. Chicago, B. &. P. R. Co. (Iowa), N. W. Rep. 901, it was held that the president of a railroad company has no power, merely by virtue of his office, to bind the company by a contract for the construction of its railroad. The court say, "Plaintiff claims to have done the work under a contract with the New Sharon, Coal Valley, & Eastern Railroad Company; the agreement being entered into on the part of the corporation by S. C. Cook, its president. The name of the corporation was subsequently changed to the Chicago, Burlington, & Pacific Railroad Company. The evidence shows that the work was in fact done under a contract entered into by plaintiff with Cook; but defendants claim that the latter was acting for the Trunk Line Construction Company, and that consequently plaintiff was a sub-contractor. If that claim is true, it is conceded that plaintiff cannot recover as against these defendants, for the reason that he did not take the steps requisite to preserve his lien as against them. The evidence leaves little doubt, we think, but that plaintiff understood, when he entered into the contract with Cook, that the latter was representing the railroad company; and if Cook had been clothed with power to contract for that company, it probably would have been bound by the contract. But there is no evidence that he had that power, and it is shown that the board of directors of the company had already entered into a contract with another person for the performance of the same work, and that that contract had been transferred to the Trunk Line Construction Company, which company has been paid for the work. The case, in its facts, is like Templin v. Railroad Co., decided at December term, 1887, in which we held that the president of a railroad company does not have power, by virtue of his office merely, to bind the company by a contract for the construction of its railroad. That holding is conclusive of the rights of these parties."

See generally, as to Powers of President, Duncomb v. New York & H. R. Co., 89 N. Y. 1; 13 Am. & Eng. R. R. Cas. 84; Davis v. Memphis City R. Co., 22 Ib. I.

CAMPBELL

V.

TRUSTEES CINCINNATI SOUTHERN RY.

(Kentucky Court of Appeals, Jan. 10, 1888.)

Contract for Construction Interpretation - Haulage. Where a written contract for the construction of a railroad specifies that the contractor is to receive a written sum per mile for stone "hauled by wagon," the railroad company is not bound thereby to pay for the transportation of stone by rail or steamboat.

Agency-Engineer - Construction of Road-Power to modify Contract.A written contract entered into by the trustees of a railway company cannot be modified by the construction engineer, nor has he any power to contract verbally with the contractor with reference thereto.

APPEAL from Kenton County Chancery Court.

Suit by P. Campbell against Trustees of Cincinnati Southern Railway Company, for moneys alleged to be due for work and labor performed under contract. Plaintiff appeals from a judgment for a sum smaller than that for which the suit was brought. J. G. Carlisle and Paxton & Warrington for appellant. William Lindsay and C. B. Simrall for appellees.

Facts.

BENNETT, J.-The appellant brought this action in the Kenton Chancery Court to recover of the appellees the sum of $231,451.78, with interest thereon from May 14, 1876. The appellant alleged that this sum was due him as contractor on sections 2, 3, and 4 of division A of the Cincinnati Southern Railway. The appellant also alleges that the appellees' engineer's estimate of the work done by him in constructing the appellees' railway was false, fraudulent, and erroneous, both in quantity and classifications. He asked that the engineer's estimates be set aside, and he be allowed pay for his work and labor according to the contract price. The material points of difference are: First, The appellees estimate 124,944 cubic yards of earth excavation, at 12 cents per cubic yard. The appellant claims that there were only 106,047 cubic yards of this work. Second, The appellees estimate 58,121 cubic yards of loose rock excavation, at 40 cents per cubic yard. The appellant claims that there were only 41,775 cubic yards of this work. Third, The appellees estimate 1,450 cubic yards of solid rock excavation, at $1.25 per cubic yard. The appellant claims that there were

34 A. & E. R. Cas. - 8.

The

11,086 cubic yards of this work. Fourth, The appellees estimate 415 cubic yards of excavation in water, at $1 per cubic yard. The appellant claims that there were 2,010 cubic yards of this work. Fifth, The appellees estimate 177,137 cubic yards of embankment, at 12 cents per cubic yard. The appellant claims that there were 203,143 cubic yards of this work. Sixth, The appellees allow in their estimate $9,133.52 for hauling stone. appellant claims $156,449.44 for this work. Seventh, The appellant claims that he excavated 52,225 cubic yards of hard pan at 75 cents per cubic yard. The appellees deny that he did this work. Eighth, The appellant also claims for extra work. The lower court rendered judgment for the appellant for the sum of $28,276, with interest on $25,000 of this sum from the 19th of October, 1876, and interest on the remaining $3,726 from the 7th of July, 1879. The appellant has appealed to this court.

Evidence.
Appellant's

duty to make
out case.

From the foregoing points of difference it will be seen that the appellant and appellees mainly differ about the classification of the material and the hauling of stone. It is to be observed that the points of difference relate exclusively to matters of fact, except the sixth point, which involves a construction of one clause of the written contract made by the appellant and appellees. This record contains over 1,200 pages of printed evidence. All of this evidence relates to the questions of fact put in issue by the pleadings. To attempt to give an analysis of the evidence in this opinion would extend it far beyond a reasonable length, and the result would at last be what we can express in a few words. Therefore it is sufficient to say that the appellant sustains each of his contentions by such evidence as establishes, if uncontradicted, a prima facie case. On the other hand, the appellee, by evidence equally as positive and apparently trustworthy, not only contradicts the appellant's evidence, but establishes each of their contentions. In this connection it is proper to remark that it devolved upon the appellant to make out his case by a preponderance of evidence. This court, in the case of Cummings v. Trustees, etc., MSS., which case is in many respects similar to this, decided that where the case before the chancellor involved purely questions of fact, the decision of the chancellor thereon. must be regarded by this court in the same light as the verdict of a properly instructed jury; and the chancellor's decision would not be reversed unless it was palpably against the weight of the evidence.

The appellant's contention here is, not that there is no evidence to sustain the judgment of the lower court, but that the judgment is against the weight of the evidence. As just said, the burden was upon the appellant to make out his case. His evidence, if

uncontradicted, establishes a prima facie case. On the other hand, the appellees' evidence, if uncontradicted, establishes a prima facie case for them. The contentions of both appellant and appellees are sustained by positive and direct testimony. The testimony on the one side is positively irreconcilable with that on the other side. The chancellor having a better opportunity than this court to know the standing of the witnesses, and it being peculiarly within his province to weigh their evidence, and give it such credence as in the exercise of a sound and impartial judgment he thought was due, this court cannot reverse his decision, although we might come to a different conclusion as to the mere weight of the evidence. But, before reversing, we must be able to say that his findings are clearly against the weight of the evidence. This we cannot do.

of contract.

By the terms of the written contract the appellant was to receive for hauling stone 75 cents per cubic yard for every mile the stone was hauled by wagon, and a proportionate rate for every fraction of a mile. The appellant claims Interpretation $156,449.44 for extra haul of stone. The haul of this Haulage of stone was by rail and steamboats. The appellant stone. claims, first, that these means of transportation are within the meaning of the contract. To this proposition we cannot agree-First, because the language "hauled by wagon" does not, in the common acceptation of the term, mean a transportation by rail or steamboat; second, in the original specifications which were submitted to the appellant the word "wagon not used, but the word "wagon" was written in the contract signed by the appellant. By the original specifications the appellant would have been entitled to pay for transporting stone by any kind of conveyance; but the word "wagon was inserted in the contract as an expressed limitation, by which the appellees bound themselves to pay for the hauling of stone by wagon only. The attempt of the appellant to prove, that, by verbal contract with the appellees' engineer, he was to have the same price for hauling this stone, must fail, for two reasons: First, his evidence is flatly contradicted; and the lower court passed upon it, and we see no reason for disturbing engineer. the decision. Second, the engineer had no power to contract with the appellant in reference to that matter, nor did he have power to change or modify the written contract. The judgment of the lower court is affirmed.

Modification of contract by

LOUISVILLE, EVANSVILLE, & ST. LOUIS R. Co.

ย.

DONNEGAN.

(Indiana Supreme Court.)

Contract for Construction

Stipulation- Estimate of Engineer. —A stipulation in a contract for the construction of a railroad, that the engineers of the company should make final estimates of the quality, character, and value of the work done, and that such final estimates should be final and conclusive against the contractors, "without further recourse or appeal," does not deprive the contractors of the right to resort to the courts for a redress of wrongs, and for the recovery of whatever may be due them.

Same-Incompetency of Engineers. Where it is shown, that, owing to the negligence, carelessness, incompetency, and mistake of the company's engineers, the statements of the work done under such a contract for the construction of a railroad are in many instances incorrect, the contractors are entitled to recover what is due them in an action at law, notwithstanding the estimates of the engineer.

Same-Delay in Construction.-A provision in a contract for the construction of a railroad, that, in the event of the contractors failing to employ such a force as the company's engineer might deem adequate to the completion of the work within a fixed time, the engineer might employ such number of workmen as in his judgment would be necessary, pay them such wages as he might find necessary and expedient, and charge the contractors with the amount of so much paid to them under the contract, does not authorize the engineers to exclude the contractors from the work arbitrarily, or on account of delay caused by his own fault, negligence, and incompetency.

Same-Length of Piling-Mistake of Engineer. Where, by a contract for the construction of a railroad, it is stipulated that the contractors are to be paid only for the lineal feet of piling actually used in the work, the contractors will, notwithstanding such provision, be entitled to recover from the company the loss occasioned by the mistake of the engineer in ordering the piling a greater length than necessary, which necessitated the cutting of the same.

Same Time required for Construction - Expert Testimony. - In an action upon a contract for the construction of a railroad, where the question of the time required to complete the work contracted for is material, the testimony of railway builders engaged in such work, as to the length of time in which it could be reasonably completed, is competent.

APPEAL from Vanderberg Circuit Court.

Action by James Donnegan and others, as partners, against the Louisville, Evansville, & St. Louis Railroad Company, to recover the amount alleged to be due to them under a contract with defendant for the construction of certain sections of its road. Judgment for plaintiffs. Defendant appeals. The opinion. states the case.