entered into a written contract with J. P. Usher for the construction of its road, and that J. P. Usher assigned the contract to D. M. Edgerton, and that as the evidence did not show the Solomon Railroad Company ever made any other arrangement for the construction of its road, the inevitable conclusion is that the work was constructed pursuant to the contract, or by a volunteer; and therefore that the Solomon Railroad Company is not liable to Jones, who was at work at the time of his injury on the construction. Non sequitur, the contract was not made public, nor did Jones have any knowledge or information thereof. Under subdivisions 1, 2, and 3 of the syllabus of the former decision a liability might attach to the Solomon Railroad Company, although Edgerton had taken an assignment of the contract from Usher, and the company had made no other arrangement for the construction of its road. Counsel refer to the case of Chicago & G. E. Ry. Co. v. Fox, 41 Ill. 106, as very much like the case at bar, and as an authority that the instructions of the trial court were erroneous, and also as tending to show that there was no evidence to support the verdict. In that case Fox & Howard were the owners of a pile-driver. One Vosburgh was a contractor to construct a bridge for the railway company. He applied to Fox & Howard and procured the pile-driver, and used it in constructing the bridge. Fox & Howard sought to recover of the railway company for the use of the implement and the work done by them upon the bridge. The company denied the employment, and the court very properly held that there was no evidence to support the verdict. Vosburgh, the contractor for the Chicago & Great Eastern Railway Company, was not the president or any officer of that corporation; and that case, upon the facts, is easily distinguishable from this. Here, D. M. Edgerton was the president of the corporation sued, and, according to the testimony of Jones, paid him on September 26, 1879, for work upon the construction; and when Edgerton paid him off Jones asked "if he would want the men back again," and Edgerton replied: "Boys, you who want to go home can go home; and for those who don't want to go home, there is work for surfacing." Then Jones asked him "when he would commence laying track again," and Edgerton said: "Not before next week. Come back then; there was work for us all." "Where the president of a corporation appears as the active agent in the execution of any work, parties employed by him have the right to assume that he is acting for the corporation, and that his acts in that respect are its acts and binding upon it." Railroad Co. v. Jones, supra.

Much complaint is made of the seventh instruction, and of other like instructions, permitting the jury to find that Jones was an employe or servant of the Solomon Railroad Company at the time he was injured if he had no notice or knowledge of employment from the Kansas Pacific Railway Company, if the jury further found that the work of constructing the road was being done with the knowledge of the v.8P, no.11-47

president of the Solomon Railroad Company, in the name of that company, and that the president of that corporation was personally engaged in superintending and giving general directions in regard to the work and employment of the men engaged thereon. The claim is that Jones was employed about the first of September, 1879, by Patrick O'Riley, who had the entire charge of track laying; that O'Riley was in the employ of the Kansas Pacific Railway Company; and that Jones had notice from the pay-roll receipts signed by him prior to his injuries that he was in the employ of the Kansas Pacific, and not of the Solomon Railroad Company. We perceive no error in the instructions in this regard. Edgerton testified that while he was upon the road between Minneapolis and Beloit, he was the one who gave all the general directions concerning the construction; that he had men under him, and that he regarded himself as the boss of the work until he turned it over to S. T. Smith; that O'Riley was sent to him by the Kansas Pacific; that the authority he conferred upon O'Riley was the immediate charge of the track laying; and that the work was done "in the name of the Solomon Railroad Company, but for the account of the Kansas Pacific Railway Company proper.' O'Riley testified that A. H. McLeod employed him to work for the Kansas Pacific Railway Company in 1878; that he was made assistant roadmaster of the Kansas Pacific in May or June, 1879; that in September, 1879, McLeod ordered him to Minneapolis to report to Edgerton or Smeed; that he went to Minneapolis and reported to Edgerton, who ordered him to report to Smeed; and that Smeed gave him entire charge of the track laying. As to the receipts executed by Jones to the Kansas Pacific Railway Company for his services upon the road, the following facts appear, according to his evidence: He was paid only twice while at work, and both times at Minneapolis. The first time Edgerton paid him in person, and at that time he signed the first receipt to the Kansas Pacific. This was about September 26, 1879. The second time he was paid late in October, 1879, for the work done that month, and for this also he signed a receipt to the Kansas Pacific; but his testimony shows that he did. not read the receipts, nor have an opportunity so to do, and the reason he gave was that "there were too many men waiting to be paid off, and there was no time for me to read the receipts." We cannot say, as a matter of law, upon the facts, that Jones had notice from the receipts that he was in the service of the Kansas Pacific Railway Company. While a receipt is prima facie evidence of all the facts and statements contained therein, it is open to explanation; and if Jones did not read the receipts, or either of them, and had no reasonable opportunity so to do, he cannot be bound by the contents thereof. Bemis v. Becker, 1 Kan. 226; Bridge Co. v. Murphy, 13 Kan. 35; Wolf v. Foster, Id. 118; Stout v. Hyatt, Id. 243; Railroad Co. v. Doyle, 18 Kan. 58.

Our attention is specially called to the cases of McCormack v. Molburg, 43 Iowa, 561, and Gulliher v. Railroad Co., 13 N. W. Rep. 429,

as laying down a different rule. The decisions in both of these cases. refer to written contracts. In the first case it is said in the opinion: "In fact, no excuse whatever is given except that the defendant signed the contract relying on the representation of the plaintiffs as to its contents. This is inexcusable neglect, and the defendant must suffer the consequences of his own folly." In the second case it is said: "The instrument in writing (under consideration) is more than a mere receipt; it is a contract of settlement, and is binding on the parties unless it was procured by fraud." The rule applicable to the conclusiveness of a written contract does not apply to a mere receipt. Concerning the receipts offered in evidence the court fully instructed the jury as follows:

(41) "If the plaintiff had read said receipts it would have been presumptive evidence that he knew he was in the employ of the Kansas Pacific Railroad Company." (43) "A party who can read can have no advantage from the fact that he has not read a receipt which he has signed unless he has proof that fraud has been practiced upon him to induce him to sign it, provided he had an opportunity to read the same." (40) "Though the jury may believe from the testimony of plaintiff that he did not read the receipts signed by him in evidence in the case, nevertheless it was his duty to do so before he signed them, and by law he is charged with the knowledge of their contents, the same as if he had read them, provided he had an opportunity to read the same; but he is not estopped thereby from showing the real facts in regard to such payments, if any payments were made at the time."

The inquiry was made of Jones: "In whose employ were you in November, 1879?" This was objected to by the railroad company as calling for an opinion. The objection was overruled, and an exception taken. Jones answered: "The Solomon Railroad Company." Similar questions arose upon the testimony of Thomas McGuire and other witnesses. The evidence thus obtained was incompetent. Had the question been merely preliminary it would not have been erroneous. Although the evidence was incompetent, we do not think the error occasioned by its admission material. Simpson v. Smith, 27 Kan. 565. A large amount of similar testimony was given on behalf of the railroad company. After Jones and the other witness had stated in whose employ they were in the fall of 1879, upon direct and cross-examination they narrated in detail all the facts concerning their employment. Therefore the jury had before them all the facts as to the persons or company that employed these witnesses.

On February 3, 1880, A. H. Ellis wrote a letter to the superintendent of the Kansas Pacific Railway, at Kansas City, Missouri, asking him to refer the claim of Jones to the proper officer of his company, and to inform him of the intention of the company in the matter. This letter contained a brief statement of the injuries Jones received, and alleged that he was damaged at least $500, but, rather than go to law, would settle for $200 if the matter was closed up at once. The superintendent wrote, in answer to Ellis, on February 5, 1880, that he would have the matter investigated without delay, and

advise him on receipt of report. This letter was offered in evidence in connection with the letter of Ellis. The court ruled the letters out, holding that the evidence was not admissible. There was no error in this ruling. Ellis testified "that at the time he wrote his letter he had no employment or agency of any kind whatever from Jones, and that he had no authority from him at the time to write that letter, or any other letter." Jones also testified that “he did not think he ever laid his claim in for injuries with Mr. Ellis against the Kansas Pacific Company." Before the letters were competent it was necessary to show that Ellis had authority to write the letter of February 3d. Counsel for the railroad company cite Marshall v. Cliff, 4 Camp. 133, and upon that authority it is insisted the letter of Ellis was competent evidence in the cause. It was decided in the subsequent case of Wagstaff v. Wilson, 4 Barn. & Adol. 339, that "a letter written to the plaintiff's attorney, before action brought, by the attorney who afterwards appeared in the cause for the defendant, was not evidence of a fact admitted therein without further proof that the defendant authorized the communication ;" and PARKE, J., in the opinion in that case, referring to Marshall v. Cliff, supra, said: "The attorney's letter relied upon to prove the joint ownership of the defendants contained an undertaking to appear for them; that was a step in the cause. The letter of Ellis was no step in this cause. Therefore the case of Marshall v. Cliff, cited by counsel, is clearly different from this. Weeks, Atty. § 223. Again, an attorney has no power, without express authority from his client, to compromise or settle his client's claim. Jones v. Inness, 32 Kan. 177; S. C. 4 Pac. Rep. 95. It was not proved upon the trial that Ellis was authorized to write his letter, or had any express authority to compromise the claim therein referred to.

It appears that Samuel Burkholder was sworn on the former trial of this cause. Having died since that trial, A. H. Ellis was sworn. as a witness, and testified to the statements made on oath by Burkholder when he was a witness in the case. Among other things, Ellis testified that "he was present in court and heard Burkholder's testimony given sometime during the month of December, 1881; that at the time Burkholder testified in substance as follows." Ellis thereupon commenced reading the printed transcript which contained in the bill of exceptions the testimony purporting to have been given by Burkholder on the former trial. Ellis stated if the company objected to his reading from the printed copy, he would read from the manuscript bill of exceptions; but the counsel for the company waived the production of the manuscript bill, and claimed it was incompetent for Ellis to read from either. The court thereupon overruled the objection. Subsequently the witness Ellis was cross-examined at great length, and upon such cross-examination testified, among other things, that the counsel for the railroad company prepared the bill of exceptions; that he made suggestions of amendment

thereto before the trial judge at the time the same was settled. He also testified upon cross-examination that his recollection as to what Burkholder swore to on the former trial depended largely upon the transcript, but that he had an original recollection from his insight in the case, and from the fact that certain questions in the case had always seemed to be important. The company objected to Ellis stating that Burkholder swore as appeared in the bill of exceptions. The objection was overruled, and this ruling is also alleged as error. The contention is that Ellis could not read the bill of exceptions for any purpose, nor refresh his memory therefrom. The case of Stern v. People, 102 Ill. 540, is cited to the effect that the testimony of deceased witnesses at a former trial cannot be proved by the bill of exceptions taken at that trial. We may admit the doctrine announced in the above case to the fullest extent, and yet the case does not sustain the objections made to Ellis' testimony. Ellis was called to testify as to what Burkholder, the deceased witness, swore. Although he read from the bill of exceptions, he stated that Burkholder's testimony at the former trial was, in substance, as stated therein. Therefore the testimony of the deceased witness was given by Ellis from the bill of exceptions, supplemented with his oath as to its correctness. In other words, he read to the jury the testimony of the deceased witness as embodied in the bill of exceptions in connection with his own oral testimony. Ellis was present at the former trial, and sufficiently interested in the case to remember the substance of the testimony, and he could have been and was very thoroughly cross-examined. Thus, the correctness of the bill of exceptions, and the other evidence of Ellis, might have been disputed. The decision in Stern v. People, supra, is based upon Railroad Co. v. Keep, 22 Ill. 9. In that case the witness was permitted to read from written minutes what a former witness, then deceased, had testified. Before reading he testified that he could not state the testimony of the deceased witness minutely from his recollection, but must rely upon his minutes taken at the time, and which he believed were correct, and then read from the minutes the testimony of the deceased witness. BREESE, J., in that case, said:

"What better evidence of the testimony of a deceased witness could there be than correct notes of it taken at the time? It fulfills one of the most important requirements of the law that the best evidence shall be produced in the power of the party to produce. If not truly taken and reported, it is open to attack and exposure from the other side, whose counsel may also have taken full notes; or the judge who tried the cause may be sworn, and his notes used for such purpose; or any one or more of the jurors or bystanders who heard the case inay be examined as to their fidelity and correctness. It seems to us that such minutes, sworn to be correct, are far better and more satisfactory as evidence than the imperfect and fleeting recollection of any man could possibly be; and we do not feel the force of a reason which shall require us to reject a higher for an inferior grade of testimony."

The bill of exceptions, which contained in great detail the evidence of Burkholder on the former trial, was prepared when the matters