57 Neb. 195 | Neb. | 1898
The petition of the plaintiff filed herein declared upon an alleged contract between the Chicago, Kansas & Nebraska Railroad Company and herself which was in the following terms:
“This agreement, made' and entered into this-day of-, A. D. 188 — , by and between Indiana Knapp, of the town of Beatrice, county of Gage and state- of Ne-‘ braska, of the first part, and the Chicago, Kansas & Nebraska Railroad Company, in the state of Nebraska, of the second part, witnesseth: That the said party of the second part covenants and agrees to and with the said party of the first part to build and maintain a certain crossing, not less than twelve feet wide, nor less than six feet high, under the tracks of the said Chicago, Kansas & Nebraska Railroad Company’s railroad, and com*196 píete said crossing on or before January 1, 1887, upon the S. W. quarter of section 31, town 4, range 8. And the said party of the first part covenants and agrees to and with the said party of the second part for tlie same as folloAvs, viz.: To accept the aAvard of the commissioners appointed to assess the damages for the right of way over the south half of section 31, town-4, range 8 east, and to allow the removal of earth from a strip of land 300 feet, along the right of way, and 50 feet wide, commencing at the point Avhere said railroad right of way enters said land on the east, said excavation to slope to the south and to be free of water holes and drainage from or through the right of Avay or adjoining land.
“And for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties to these presents bind themselves each unto the other in the penal sum of one thousand dollars as liquidated damages, to be paid by the failing party.
“In witness whereof, the parties to these presents have hereunto set their hands, the day and year last above written. Indiana Knapp.
“S. H. Gilson, .
“Division Engineer, O. K. & N. Ry.
“Signed, sealed, and delivered in the presence of “J. 0. Fletcher.”
It was further pleaded that the company constructed the passage-way under its road or track during the year 1886, and the same was maintained until the month of September, 1893, or about seven years, Avhen it was by the Chicago, Rock Island & Pacific Raihvay Company, which then controlled and operated the line of raihvay, filled and destroyed, and the plaintiff thus deprived of its use and enjoyment and of the benefit of the contract. It was also pleaded that the first named company, and with which the contract purported to be made, transferred the line of road to the Chicago, Kansas & Nebraska Railroad Company, Avliich transferred it to the Chicago, Rock Island & Pacific Raihvay Company. The
Of the errors assigned was that of the giving in charge to the jury an instruction numbered 8 requested for the defendants, which was as follows: “The jury are instructed that the plaintiff cannot recover in this action against the defendants, or any or either of them,, on her alleged cause of action in this case without first establishing by a preponderance of the evidence that S. H. Gilson, who is alleged to have signed the contract, a copy of which is attached to plaintiff’s petition, was the agent of. the defendant the Chicago, Kansas & Nebraska Railroad Company, and that the. making of such contract was within the general or apparent scope of his authority.” This made it obligatory upon the plaintiff to show by a preponderance of the evidence that the party who ostensibly, at least, signed the contract in suit for one of the defendants was then its agent and possessed real or apparent afitliority to enter into the contract for the company named therein. These facts were by the instruction required to be established before the plaintiff could be accorded a verdict, and this regardless of what might be proven on other material points or branches of
Reversed and remanded.