If Sparks had complied with his contract, its breach by appellants would have given to one who had purchased tickets for that day a cause of action; and if appellee had known of Sparks's contract, the act of appellant's agent would be equivalent to a declaration that he had complied with it.

It is urged that the judgment is excessive, and we are of opinion that there are no facts stated in the court's conclusions of fact sufficient to sustain the judgment.

Appellee is entitled to recover the sum paid by her at Greenville, with interest thereon, as damages, and, as the purpose of her visit to Dallas was practically defeated by the delay at Greenville, to compensation for loss of time, which may embrace the entire period from time of her leaving Sulphur Springs till her return; but this is the extent of her rights, under the facts shown.

Because the judgment is excessive it will be reversed; and as there is no finding of fact on which judgment can be here rendered, the case will be remanded.

- For the

CARRIERS OF PASSENGERS-DAMAGES FOR DELAY IN CARRIAGE. measure of damages recoverable against a carrier for a delay in transporting a passenger to his point of destination, see Williams v. Vanderbilt, 28 N. Y. 217; 84 Am. Dec. 333, and note.

CUSHMAN V. SOMERS.

162 VERMONT, 182.]

PRACTICE. WHERE CHARGE AS A WHOLE IS CORRECT the judgment will not be reversed, although an extract from the charge, taken by itself, is

erroneous.

PRINCIPAL AND AGENT — APPARENT AUTHORITY OF AGENT.—Where an agent, with express authority to collect, and apparent authority to manage the manner of collection, receives money in payment in lieu of a royalty payable in pulp, his principal is bound by the payment.

EVIDENCE- DECLARATIONS OF AGENT. - A witness who has testified to certain declarations made by an agent during the term of his agency cannot be permitted, on cross-examination, to testify to contrary declarations made by such agent after the expiration of his agency.

COVENANT. Judgment for defendant, and plaintiff appealed. Ide and Stafford, for the appellant.

Bates and May, for the respondent.

TAFT, J. The defendant was under contract to pay the plaintiff, as royaly for a wood-pulp grinder, two tons of dry pulp monthly. He claimed that George Cushman, the plaintiff's brother, acting for the plaintiff, had agreed to take money in lieu of pulp. Whether such an agreement had been made, and if so, whether George had authority to make it, were the important questions raised upon the trial.

1. The only exception to the charge insisted upon in argument is the one taken to the statement in it, "that if George had authority to collect the royalty, and so acted in the collection of it as to lead the defendant to understand that he need not pay in pulp, then the plaintiff cannot recover." This

statement of the law, taken by itself, naked and alone, may be erroneous, for it may well be claimed that mere authority to collect gives no power to vary, in any way, the terms of payment; so that if the extract above quoted was all there was of the charge, and there were no facts in the case except such as required that charge, and that alone, there would undoubtedly be solid ground for the plaintiff's claim that it was error. But we are not called upon to say that it was error, for the whole charge is before us, and it must be construed as a whole: Fassett v. Roxbury, 55 Vt. 552; Stevens v. Dudley, 56 Vt. 169. And it must be construed in connection with the testimony in the case, and as applicable to it; and if the charge as a whole was correct, the judgment should not be reversed, although the extract, taken by itself, was erroneous. There was evidence in the case tending to show that the plaintiff held out George Cushman as having authority to collect the royalty in the manner that the defendant claimed that he agreed to do it. The evidence tended to show that he sanctioned a settlement made by George with the defendant, under the change in the mode of payment as claimed by the defendant; and if he had no authority in fact to collect it in any way save in pulp, if the plaintiff had invested him with apparent authority to collect it in some other way, and he led the defendant to believe that he might pay in a different way, and agreed that he might, the plaintiff would be bound by it. The apparent authority with which the plaintiff had invested George, or rather the rule that governed George's acts done under such authority, was as applicable to the acts of George done in connection with the collection of the royalty as it was to his acts in regard to a substitution of one mode of payment for the other; it was in reality the same rule. There was nothing for George to do except to collect the royalty, and the question in dispute was, whether he had agreed to collect it in any other way than as originally provided; and the court told the jury if he had no direct authority from his brother to change the mode of payment, yet if he had "apparent authority" to do it, if he was "held out to the world" by his brother as having it, if he "was held out in such a way to Somers that Somers naa reasonable cause to believe he was the agent of his brother, then he (the defendant) would be justified in treating with him and acting upon his propositions, even though he was not in fact the agent of his brother." and "that a man might not be an agent in fact, still the per

...

son whom he professed to represent might so hold him out to the world that he would be bound by his acts, although he was not his agent." We think the extract from the charge, "that if George had authority to collect the royalty, and so acted in the collection of it as to lead the defendant to understand that he need not pay in pulp, then the plaintiff cannot recover," must be taken in connection with what goes both bʊfore and after the sentence quoted from the charge. The only matter in controversy was the collection of the royalty, and the court says, in the first part of the charge: "And the court instructs you in this matter of agency, . . . that if the plaintiff gave George apparent authority to manage the matter of the royalty, and George agreed that the defendant might pay in money one half the amount paid by the plaintiff to settle with Russell, and the defendant agreed to pay in money in that way, then the plaintiff cannot maintain an action of covenant." To "manage the matter of the royalty" relates as much to the collection of it as to any other question connected with it and the letter as well as the whole spirit of the charge is, that if the plaintiff gave George apparent authority to manage it, in its collection, he would be bound by his acts, even if he had given him no real authority. The charge as given was correct upon the facts in the case, and this is the only question in respect of the charge before us.

2. One Bancroft, a witness called by the defendant, testified that on or before the 23d of July, 1881, George Cushman told him that the royalty was to be paid in money. On crossexamination, the plaintiff offered to show that George, several years afterwards, and after the lease had expired, claimed otherwise. This offered testimony was excluded. It does not appear upon what ground. It was the declaration of an agent after the expiration of the business in question, in favor of his principal, and if admissible, if offered by the plaintiff when putting in his side of the case, it certainly was no part of the cross-examination, and inadmissible for that reason. It does not appear that there was error in its exclusion, and we cannot presume it.

Judgment affirmed.

AGENCY-LIABILITY OF PRINCIPAL FOR ACTS OF AGENT - Apparent AuTHORITY. As to third persons, the principal is bound by the acts of his agent done within the apparent scope of his authority; and his actual instructions do not govern, unless the person dealing with him had notice of his real authority: Wachter v. Phenix Assur. Co., 132 Pa. St. 428; 19 Am.

St. Rep. 600, and note. The rule that a principal is bound by the acts of his agent within the apparent scope of his authority is applicable only when there have been previous transactions of a similar character, in which the agent exceeded his powers, and which were ratified by the principal, and without knowledge on the part of the third party of a limitation of the agent's authority, and an excess in the particular case, whereby such party was led to believe that the agent had all the powers assumed by him: Kane ▼. Barstow, 42 Kan. 465; 16 Am. St. Rep. 490, and note 493, 494, upon the question of the agent's power to bind his principal by acts not authorized, but done in the apparent scope of his authority. One clothing an agent with apparent authority is estopped to deny such authority with respect to persons dealing with the agent on the faith thereof: Hubbard v. Tenbrook, 124 Pa. St. 291; 10 Am. St. Rep. 585, and note; Barry v. Boston etc. Ins. Co., 62 Mich. 424; Howell v. Graff, 25 Neb. 130; Milne v. Kleb, 44 N. J. Eq. 378; Stovall ▼. Commonwealth, 84 Va. 246. But outside his apparent authority, the agent cannot bind his principal: Fore v. Campbell, 82 Va. 808; Covington ▼. Newberger, 99 N. C. 523; Beebe v. Equitable etc. Ass'n, 76 Iowa, 129.

BATES V. RUTLAND.

[62 VERMONT, 178.]

MUNICIPAL CORPORATIONS-LIABILITY FOR DEFECTS IN STREETS. - Where the charter imposes no liability on a municipal corporation for damages sustained by individuals upon its streets and highways in consequence of defects therein, such defects are not actionable. MUNICIPAL CORPORATIONS - LIABILITY FOR NEGLIGENCE OF OFFICERS. The trustees and street commissioner of a municipal corporation, which is bound by law to maintain the streets and highways within its limits, are public officers, and act as such in locating and using a stone-crusher in the highway outside the city limits for the purpose of crushing stone for the construction and repair of its streets. In such case, the corporation is not liable for the negligence of such officers. MUNICIPAL CORPORATIONS

- LIABILITY FOR NEGLIGENCE OF OFFICERS. — The officers of a municipal corporation engaged in the public work of re pairing its streets are public officers, and an action will not lie against the city for their negligent acts in performing such work.

CASE for negligence against the village of Rutland. A stone-crusher was located outside the village limits in the highway, with the consent of a majority of the selectmen of the village, by the trustees thereof, and was used by their direction in crushing stone for the construction and repair of the village streets. Plaintiff's horse became frightened at the crusher, whereby plaintiff's wife was thrown from her carriage, and injured. Judgment for plaintiff, and defendant appealed. Butler and Moloney, for the appellant.

Lawrence and Meldon, and J. C. Baker, for the respondent.