15 Ind. 343 | Ind. | 1860
Suit by Brooks against Oochran to recover the price of 500 cross-ties, alleged to have been furnished for the Ohio and Mississippi Railroad.
Trial upon the general denial. Judgment for the plaintiff, _ for his entire demand. The evidence is upon the record, and is as follows:
John Brooks, a son of the plaintiff, then about thirteen years’ old, was present when, at Mooreshill, in the Spring of 1853, the defendant, Cochran, told his father that he would give him twenty-five cents a piece for cross-ties delivered on the Ohio and Mississippi Railroad; that his father delivered 507, demanded the pay for them of Goehr an, and received for answer that the Ohio and Mississippi Railroad Company was the debtor. Daniel F. Allen was tie inspector on said railroad, from July, 1853, to August, 1854, and in the Spring of 1854, received of Brooks 300 ties by procurement of Cochran, and paid Brooks for them at the time, and then notified him that no more ties were wanted. Brooks delivered 200 more ties, which witness refused to receive. Knows of no other ties delivered by Brooks; had been no ties delivered on the road, within three miles of Mooreshill, to his knowledge, when he commenced acting as tie inspector in July, 1853. Joseph Finkbine was conductor of construction train on said railroad from 1853 to 1855. Took ties for road that were delivered at Mooreshill. Brooks claimed that some ties delivered by him on Cochran's procurement had not been paid for, and that the road owed him for them. Had made such claim several times, and had repeated it within a year, with threats.
We think this evidence proves three things. 1. That the railroad company is the debtor for whatever ties were delivered through the agency of Cochran, and, hence, should have been sued, as Brooks was cognizant of the principal when he contracted with the agent. 2. That 300 of the ties charged in this suit had been paid for. 3. That no definite number was contracted for, and, hence, the company could cease receiving at any time, on notice. The boy was mistaken a year in the time.
The judgment is reversed, with costs. Cause remanded for further proceedings.
