Maxson v. Michigan Central Railroad

Grant, C. J. (after stating the facts). 1. It was error to admit the testimony of the witness Wells. Contracts cannot be established by statements of an agent made years afterwards. Such statements do not bind the principal. If Bush had been living, and a witness for the de [223] fendant, this testimony, upon laying the proper foundation, wquld have been admissible as impeaching. “The admission or declaration of an agent binds his principal only when it is made during the continuance of the agency, in regard to a transaction then depending et dum fervet opus. It is because it is a verbal act, and part of the res gestae, that it is admissible at all.” 1 Greenl. Ev. § 113. “The representation, declaration, or admission of the agent does not bind the principal if it is not made at the very time of the contract.” Story, Ag. § 135; Haven v. Brown, 7 Me. 421 (22 Am. Dec. 208); 1 Am. & Eng. Enc. Law (2d Ed.), 1143. 2. This was an unusual contract, and not such as individuals or corporations are in the habit of making. A division superintendent of a railroad is not a general agent who is, by virtue of his agency, authorized to perform every act, or make every contract, which his principal might do. To settle claims and make life contracts is not within the ordinary power of such an agent. It was, therefore, incumbent upon the plaintiff to show either original authority to make the contract or ratification by the company. Plaintiff showed no original authority in Bush either to settle a claim for damages or to employ the plaintiff for life. Certainly a division superintendent, who is subject to the supervision of the general superintendent, and of the president and directors of the company, is not clothed, by virtue of his agency, with any greater authority than is the cashier of a bank or other corporation. In Delta Lumber Co. v. Williams, 73 Mich. 86, it was held that “compromising claims, settling unliquidated damages, and releasing debts due to the corporation, are acts which do not come within the ordinary duties of a cashier. ” In making such an extraordinary contract, plaintiff knew that he was dealing with a subordinate agent of the company, and was hound to inquire into and ascertain his authority, not from the agent with whom he dealt, but from the principal with which he was dealing. In Brighton v. Railway Co., 103 Mich. 420, plaintiff’s claim was based [224] upon a written contract for the payment of money in settlement of his damages, and for permanent employment. Money could not well have been paid from the treasury of the company without the authority of the company itself. There was, therefore, evidence both of original authority and of ratification, and in a conflict of evidence the question was properly submitted to the jury. In this case there was no money to be paid, and nothing to indicate that the company was informed that plaintiff was employed in any other than the ordinary manner. The evidence on the part of the defendant showed that Bush had no authority to settle claims, or to employ men for life. Plaintiff introduced no evidence to the contrary. It was, therefore, error to submit the question of authority or of ratification to the jury. Randall v. Railway Co., 113 Mich. 115 (38 L. R. A. 666); Hartigan v. Railroad Co., 113 Mich. 122. If plaintiff relied upon ratification, it was his duty to establish the fact that defendant had knowledge of the alleged contract with Bush, and acted upon it. 1 Am. & Eng. Enc. Law (2d Ed.), 1189. The record is barren of any evidence to prove' such knowdedge. The mere fact that plaintiff was employed for the company to perform services which he was capable of rendering is not evidence either to sustain the alleged contract or of ratification. It is unnecessary to discuss the other question raised. Under this record the court should have directed a verdict for the defendant. Judgment reversed, and new trial ordered. The other Justices concurred.