ute gives interest in the absence of a written contract or judgment, is "on money withheld by an unreasonable and vexatious delay of payment." Whether the interest be claimed upon one ground or the other, the question must be submitted to the jury.

The judgment of the court below is reversed, and the cause remanded.

Judgment reversed.

CONSOLIDATED GREGORY Co. v. RABer.

(1 Colorado, 511. Supreme Court, 1872.)

Agent's power to hire. An agent of a mining company may employ laborers in the business of the company, but he can not pledge the faith of the company to persons not so employed.

Hostler for agent. The hire of an hostler in charge of a team used by the agent in the business of the defendant company, and also while attending to business for other companies, is not a contract within the power of the agent to bind the company.

Ratification. But the admissions of the corporate officers, when informed of the clain, were held to amount to a ratification.

Admissions by defendant's agents. To admissions by a director, and by the succeeding agent of the company, a general objection was made below. Such objection can not be made specific above. If their want of authority to bind the company had been suggested below, it might have been proved.

Remittitur-Costs. Damages in excess of the evidence may be remitted in the appellate court, the appellant being allowed his costs.

Appeal from District Court of Gilpin County.

At the trial, M. B. Hays testified: "That he, as agent of defendant, employed the plaintiff in the spring, 1867, at $60 per month, and that plaintiff worked for defendant about a year; that the work of plaintiff was to take care of the team of James E. Lyon & Co., and to saw wood for the house and office, and there was due defendant, on the 15th of January, 1868, the sum of $490; that he, the witness, was the agent or defendant, and for James E. Lyon & Co., and that the

team was used by him in the business of defendant, and also while attending to the business of other companies."

Mrs. N. Buckman testified: That she had a conversation with Richman, agent of defendant, in 1868, in which she said to Richman, "I hope my brother will not lose anything by the Consolidated Gregory Company;" and he said, “He shall not." Witness was then asked about a conversation with Frank Parmelee. The defendant admitted that Parmelee was, at the time of the conversation, a director of the company. Witness then stated that she had a conversation with Parmelee in 1868, about the claim of plaintiff against defendant, and Parmelee said that plaintiff was a good boy, and should lose nothing by defendant.

The defendant objected generally to the evidence of Mrs. Buckman, but did not state the ground of objection. The verdict was for $628.83, and the damages were laid in the declaration at $490. Appellee filed in this court a remittitur, by which he proposed to remit to the appellant the amount by which the verdict exceeds the ad damnum in the declaration.

Messrs. JOHNSON & TELLER, for appellant.

Mr. L. C. ROCKWELL, for appellee.

HALLETT, C. J.

The business of the Gregory Company is mining, milling and melting ores. Raber was employed by the agent of the company to take care of a team, the property of Lyon & Co., which the agent says was used for the company. Lyon & Co. made no charge for the use of the team, and before Raber was employed, the company had paid for its keep. I can not perceive that these facts create any obligation on the part of the company to pay for Raber's services. If Lyon & Co. furnished the team without charge, this is no evidence to show a contract with the groom. It is true that the agent of the company states that he employed Raber for the company, but this was evidently beyond his authority. He could employ laborers in the business of the company, but he could not

pledge the faith of the company to persons not so employed. But the declarations of Richman, who was the successor of Hays in the agency, and of Parmelee, who was a director of the company, must be regarded as an admission by the company of the indebtedness to Raber, and, therefore, a ratification of Hays' act in employing him. The account was entered in the books of the company, and Richman objected to it when he took charge of the company's affairs. It is not shown that any other demand in favor of Raber stood upon the company's books, and it is fair to presume that both Richman and Parmelee referred to this demand in their answers to Mrs. Buckman's inquiries. Therefore, it can not be said that the verdict is not supported by the evidence, and, although the right of the plaintiff below is not very clear, we do not see that the court erred in refusing a new trial. A general objection in the court below to the declarations of Richman and Parinelee, can not be made the basis of specific objection in this court. If Richman and Parmelee had no authority to bind the company, the attention of the court below should have been drawn to the fact, for possibly the plaintiff would have furnished evidence of their authority if it had been questioned. The amount recovered exceeds the amount shown to be due, but appellee has remitted the excess, a practice sanctioned by high authority: Bank of Kentucky v. Ashley, 2 Pet. 327.

The remittitur will be received, reducing the judgment to $490, for which execution may issue from this court, and the appellant will be allowed costs in this court.

Affirmed.

CARPENTER V. BIGGS ET AL.

(46 California, 92. Supreme Court, 1873.)

Mining Company's note-Assignment. The notes of a mining company made by its agent, without authority, are void as against the company, and their assignment will not operate as an assignment of the indebtedness for which they are given.

Appeal from the District Court of the City and County of San Francisco, Fourth Judicial District.

In the spring of 1870, A. R. Biggs was appointed by the "Jennie A. Consolidated Mining Company" as superintendent of its mine near Hamilton, Nevada. The company was incorporated under the laws of California. The superintendent was instructed by letters from the officers of the company and otherwise, not to contract any debt, but merely to expend the money furnished to him, but these instructions were not known to plaintiff or his assignors.

The powers of the superintendent were not defined in other respects. Biggs worked the mine until December 14th, 1870, and his workmen boarded with Morton & Wells until the workmen owed the sum of $1.133.09 for their board. The company owed the men for work, and Biggs arranged with all the parties that the company should pay Morton & Wells, and the amount should be charged to the workmen, and thereupon gave the following notes:

"HAMILTON, December 13th, 1870. "Twenty days after date, the Jennie A. Consolidated Mining Company promise to pay to the order of Messrs. Morton & Wells, in United States gold coin, five hundred and sixty-six dollars and fifty-four cents, for value received. A. R. BIGGS, "Superintendent."

"$566.54.

"HAMILTON, December 13th, 1870. "Thirty days after date, the Jennie A. Consolidated Mining Company promised to pay to the order of Messrs. Morton & Wells, in United States gold coin, five hundred and sixty-six dollars and fifty-five cents for value received.

"$566.55.

A. R. BIGGS,

66

'Superintendent."

Morton & Wells transferred the notes to the plaintiff, by the following indorsement on the back of each:

"Pay to John Carpenter, for value received.

"MORTON & WELLS."

This action was brought against the stockholders of the corporation on said notes.

The defendants had judgment in the court below, and the plaintiff appealed.

G. W. TYLER, for appellant.

A. M. CRANE, for respondents.

By the COURT.

The notes made by the superintendent were not the notes of the mining company. He was not authorized to make notes or contract debts in the name of the company; on the contrary, he was instructed by letters or otherwise, from the officers of the company, not to contract any debt, but only to expend such money as he might be furnished with. The notes not being authorized, were void as against the company, and their assignment did not operate as an assignment of the indebtedness for which they were given.

Judgment affirmed.

SCHAEFER V. BIDWELL.

(9 Nevada, 209. Supreme Court, 1874.)

Mining company's due bills. The superintendent of a mining company being sued upon due bills, signed "J. A. Bidwell, Supt. C. S. M. Co.," may prove that the consideration for the bills passed to the company; that the credit was given to it; that he had authority to bind it, and that he acted solely as such superintendent, to the knowledge of the payees and their assignee.

Appeal from the District Court of Lincoln County, Seventh Judicial District..

Schaefer sued to recover $2,840.10 on several due bills made to himself and his assignors, and signed "J. A. Bidwell Supt. C. S. M. Co." The bills were given in 1867, but the complaint alleged that Bidwell departed from the State soon after giving them, and did not return until May, 1872.

The answer denied any liability on the bills, but averred that defendant had signed the bills as agent of and on behalf of the Crescent Silver Mining Company, of which he was at the time superintendent and finance agent, and not otherwise.