53 Ark. 208 | Ark. | 1890
The appellee furnished board to employes of the railway, and, failing to receive his pay, sued the railway therefor, claiming that the roadmaster of the company had employed him to board the men for the company. There was a jury trial, and a verdict and judgment for the plaintiff. The railway insists that the proof fails to show that the roadmaster was authorized to charge it by contract for the purpose. We quote all the proof upon that point: It was that the company’s roadmaster had “made contracts to board section men all along the road ; ’ ’ and that it was ‘ ‘the custom of railroads in that section of country for roadmasters to hire boarding bosses.’’
Whether the contract which the roadmasters were in the habit of making was of a character to bind the company to pay the board of its employes, or to see that the employes settled their accounts, or what the nature of the contract was, is not disclosed. But conceding that the usage of the roadmasters on other roads would, in any event, be competent proof to throw liability upon the defendant for the unauthorized action of its roadmaster, it could only be when it was shown that there was a well defined and publicly known usage for road masters to bind the company to pay the board of its employes unconditionally. The nature of the contracts which the defendant’s own roadmaster had frequently made is not clearly defined; but whatever it was, the proof fails to show that knowledge of the fact that he had made contracts was ever brought home to the company, or that it ever ratified or assented to the roadmaster’s action- in any form. The employes may have paid their own board without the roadmaster’s contracts being made known to the company; or the company may have repudiated all the other contracts made by him, just as it does this one.
The verdict is not sustáined by the evidence, and the judgment must be reversed, and the cause remanded for a new trial.