The opinion of the court was delivered by
Peck, J.
The defendant has had the plaintiff’s ties, and used them in its road-bed, and is bound to pay for them. The defense is to the form of action ; the defendant claiming that, as the ties were originally taken by an agent of the company, (the road-master, Cunningham, the superintendent of the repairs of the track and road-bed for about one hundred mthes,) without authority from the plaintiff, the action of assumpsit will not lie ; that it should have been trespass. The objection of the defendant to the testimony on the part of the plaintiff, tending to show a subsequent contract of purchase by the defendant through Cunningham, with plaintiff, while the ties were still in defendant’s possession, was properly overruled. The objection was that it did not tend to show Cunningham an agent of the defendant for that purpose. If it tended to show such an agency, or apparent agency, as would bind the defendant, it was admissible.- The evidence tended to show both, and was properly received. This disposes of the defendant’s objection made after the evidence was closed, that there was no promise by any authorized agent of the company, that would entitle the plaintiff to recover. Had the plaintiff sued in trespass, it is too clear for argument, that the evidence would have been admissible to show that, by the subsequent arrangement, the plaintiff had waived the tort and converted his remedy into an action upon contract. If it would tend to defeat an action of trespass, it tends to support the action of assumpsit. The case was submitted to the jury under a charge as favorable *137to the defendant as the law would warrant, unless the exception taken to it by the defendant’s counsel at the trial is well founded. The charge allowed the jury, upon finding certain facts, to hold the defendant liable upon the ground of an ostensible or apparent agency in Cunningham. The exception to this charge is, that as it did not appear that the plaintiff parted with the ties upon any promise made by Cunningham, to render a subsequent promise binding upon defendant, it must be by an agent having real authority to bind the company. In support of this proposition, it is argued here, that in making a contract by an agent after the consideration has passed, it requires actual authority in the agent; that an apparent ostensible agency is not sufficient, as it is where the consideration passes at the time the contract is made. We are not aware that any such distinction as this is established; but if recognized at all, it could only apply to a case where the principal, immediately after the making of the contract and before the other party was at all prejudiced by relying on it, repudiates the act of the supposed agent, and puts the other party in statu quo by restoring the consideration. This the defendant has not done, but on the contrary has kept, used and consumed it. Again, this legal proposition of the defendant’s counsel is not founded in fact. The consideration of the contract did not pass from the plaintiff before -the contract was made. It is true the possession of the property had been taken by Cunningham, but the title had not passed. The property was still in existence and accessible. The consideration of the defendant’s promise was the title to the property, and that passed from the plaintiff to the defendant at the time of the contract. The defendant’s promise relied on, therefore, was not founded on a past consideration, but the consideration was cotemporaneous with the contract of sale and the defendant’s promise to pay the price.
As to the claim on the part of the defendant’s counsel that the agreement to pay for the ties was not intended to, and did not have the effect to change the remedy from tort to contract, it should be noticed that this case differs from those cases where the original cause of action is for a trespass causing an injury to the plaintiff’s property, or its destruction; nothing remaining in ex*138istence that can be the subject matter of sale, and the defendant merely promises to pay the damage. In such case it may still rest in damages to be enforced in an action of tort. In this case the cause of action is not the tortious taking; it is the subsequent sale of the property which was still in existence and subject to the plaintiff’s disposition and control.
Judgment affirmed.