roneous. The evidence is clear and uncontradicted that Jackson had no express authority from the appellant to indorse checks in its name. Indeed, it is not contended by the appellee that Jackson had any express authority to make any such indorsements, but it is claimed that he had implied authority so to do. The appellee contends that his authority to make the indorsement is to be implied from the nature of his duties as appellant's superintendent and manager, and from his conduct in connection with the business of appellant. As superintendent of the mill, Jackson was under the direction of Nathan S. Potter, who was the treasurer and managing director of the corporation. Jackson had charge of the buying of the material and of the hiring of the men, and looked after the manufacture and sale of paper. He was paid a certain annual salary, and was entitled to a percentage of the net profits of the business in excess of a certain amount. His brother, Gale Jackson, was the bookkeeper of the corporation. Appellant had a president, a treasurer, and a secretary, though the president and secretary appeared to take but little active management of the company's business. Sometimes, when Jackson was traveling, he collected money from customers of the appellant, which was charged by his brother, the bookkeeper, to his account; but the testimony tends to show that appellant had no knowledge of these charges until after the death of Jackson. Sometimes, when Jackson was on a trip for the company for the purpose of selling goods or making collections, he would adjust accounts due to the company. It was not shown that any collections made by him had ever been paid by check payable to the order of the appellant, except the check here in controversy. It was shown that the letter head of the Jackson Paper Manufacturing Company had printed at the top of it not only the names of the president of the company and the treasurer of the company, but also the name of "C. A. Jackson, Supt." The only person who had express authority to sign notes for the company, and draw checks for the company, and indorse its paper and checks, was Nathan S. Potter, the treasurer, who, as managing director, had also the general supervision and management of the business. Sometimes one P. B. Loomis, Jr., the secretary of the company, indorsed Potter's name when he was absent. It appears, also, that Potter sometimes authorized Gale Jackson, the bookkeeper, to indorse checks and drafts in Potter's name for deposit in the People's National Bank of Jackson, Mich., where appellant kept its account. It is also shown that Jackson sometimes countersigned checks drawn by appellant upon its own bank; that is to say, he wrote his name across the end of the check over the word "countersign," though this was not done in the case of all checks drawn by appellant upon its bank. The

checks so countersigned by him were drawn by appellant to pay for purchases which Jackson would make for the use of the mill, and the object of such countersigning was to show that the amount of the purchase was correct; Jackson having charge of the purchase of material to be used in the manufacture of paper by the appellant. The checks, however, given by the appellant, were all drawn by Potter, the treasurer.

The weight of authority seems to be in favor of the contention of appellant that authority to indorse commercial paper can only be implied where the agent is unable to perform the duties of his agency without the exercise of such authority. In other words, the power of an agent to indorse commercial paper for his principal must be a necessary implication from an express authority conferred upon such agent. Wherever such power is implied from the acts of the agent, the acts, subject to such implication, must be acts of a kind like those from which the implication is drawn. Parsons, in his work on Contracts (vol. 1 [6th Ed.] p. 62), says: "An agent's acts in making or transferring negotiable paper (especially if by indorsement) are much restrained. It seems that they can be authorized only by express and direct authority, or by some express power which necessarily implies these acts, because the power cannot be executed without them." The power of an agent to bind the principal by the making or indorsing of negotiable paper can only be charged against the principal by necessary implication, where the duties to be performed cannot be discharged without the exercise of such a power, or where the power is a manifestly necessary and customary incident of the character bestowed upon the agent, and where the power is practically indispensable to accomplish the object in view. An agent cannot bind his principal by making or indorsing notes for his own benefit or the benefit of third persons. Mechem, Ag. §§ 389-392. It is true that Jackson was the superintendent of appellant's mill, and managed the business of running the mill; but "an agent having general authority to manage his principal's business has, by virtue of his employment, no implied authority to bind his principal by making, accepting, or indorsing negotiable paper. Such an authority must be expressly conferred, or be necessarily implied from the peculiar circumstances of each case. It may undoubtedly be conferred, and by implication, but it will not be presumed from the mere appointment as general agent." Id. § 398. Daniel, in his work on Negotiable Instruments (vol. 1 [4th Ed.] § 292), says: "When the authority to execute or indorse a negotiable instrument is sought to be deduced from an agency to do certain other acts, it must be made to appear affirmatively that the signing or indorsement of such an instrument was within the general objects and purposes of the authority which was actually conferred; and in interpreting the authority of the agent it is

to be strictly construed." We fail to discover anything in the record in the present case to show that the power to indorse the check here in controversy was within the general objects and purposes of the authority conferred upon Jackson. Instead of transmitting the check to the appellant, he assumed to sign appellant's name upon the back of the check, and to obtain the cash for it. The indorsement was evidently made for his own benefit. There is, of course, some evidence tending to show that the trip made by him to Chicago was a trip taken in the interest of the business of the appellant, but his accounts show that there was paid to him during the time of his trip sufficient money for his expenses. Copelin & Co., who cashed the check upon his indorsement, had no business, on the 18th day of December, 1896, when the check was cashed, with the appellant, or with Jackson, as the agent of appellant. There is nothing to show that Copelin & Co. at that time owed the appellant anything, or purchased any goods from the appellant at that time through Jackson, as appellant's agent. It may be that Jackson had authority at that time to collect debts that may have been due to the appellant as his employer, but "authority to collect debts and give discharges carries no implication of authority to indorse a negotiable note." 1 Daniel, Neg. Inst. (4th Ed.) § 293. "The nature and extent of an implied authority are deemed to be limited to acts of a like nature with those from which it is implied." 1 Am. & Eng. Enc. Law (2d Ed.) p. 1002. It is not shown by any evidence whatever in the record that Jackson ever indorsed a check for the appellant, except the check here in controversy. It is not proven that he ever did any such act as the indorsement of a check or note, which was approved and ratified by the appellant after it was done. The statements made by the text writers above referred to appear to be sustained by the decided cases. Boord v. Strauss, 39 Fla. 381, 22 South. 713; Gregory v. Loose, 19 Wash. 599, 54 Pac. 33; Dodge v. Bank, 30 Ohio St. 1; Doubleday v. Kress, 50 N. Y. 410, 10 Am. Rep. 502; Smith v. Association, 12 Daly, 304: Atkinson v. Manufacturing Co., 24 Me. 176: Middlesex County Bank v. Hirsch Bros. Veneer Mfg. Co., 24 N. Y. St. Rep. 297, 4 N. Y. Supp. 385; Graham v. Institution, 46 Mo. 186; Smith v. Gibson, 6 Blackf. 370; Railway Equipment & Publication Co. v. Lincoln Nat. Bank, 82 Hun, 9, 31 N. Y. Supp. 44; New York Iron Mine v. First Nat. Bank of Negaunee, 39 Mich. 644; Vanbibber v. Bank, 14 La. Ann. 486, 74 Am. Dec. 442; Jackson v. Bank, 92 Tenn. 154, 20 S. W. 820, 18 L. R. A. 663, 36 Am. St. Rep. 81. While it is well settled that an authority to draw, accept, or indorse bills may be presumed from acts of recognition in former instances, yet those acts must be known to the party setting them up. Rawson v. Curtiss, 19 Ill. 456; Maxey v. Heckethorn, 44 Ill. 437; St. John v. Redmond, 9 Port. 432; Cash v. Taylor, 8 Law J. K. B. (O. S.)

262; Chitty, Bills (13th Am. Ed.) p. 41, *32. That is to say, where a party, accepting a check or note or bill indorsed by an agent, and shown upon its face to be indorsed by an agent, maintains that the agent had apparent authority to make such indorsement, he must prove that the facts giving color of authority to the agent were known to him. If such person has no knowledge of such facts, he does not act upon them, or part with anything on the faith of any apparent authority, and therefore is not in a position to claim anything from such apparent authority. 1 Daniel, Neg. Inst. (4th Ed.) § 297, and other authorities last above referred to. Chitty on Bills (13th Am. Ed. p. 41, supra) says: "But it must appear that the bill or note is taken upon the faith of prior similar transactions, and therefore the holder of a bill purporting to be, but not in fact, accepted by the person to whom it is addressed, cannot recover against the apparent acceptor by proving a fact, subsequently discovered, that on a former occasion the defendant had given a general authority to the person, who accepted in his name, to accept bills for him. To make such authority available, the holder must show either that the authority remained unrevoked at the time of the acceptance, or that he took the bill on the faith of such authority."

It is insisted by the appellant, that the appellee bank did not show, and did not propose to show, that appellee had any knowledge of the acts relied upon as showing by implication the authority of Jackson to indorse the check. To this contention the appellee replies that it was not necessary for it to prove its knowledge of prior similar transactions, and that it accepted and paid the check on the faith of such transactions, but that it was sufficient if Copelin & Co., who purchased the check from Jackson, had such knowledge. In other words, the question, as presented by the appellee, is whether Copelin & Co. obtained good title to the check through the indorsement of Jackson. Appellee claims that, if Copelin & Co. had good title to the check, that firm would transfer by its indorsement no worse title than it had. Without stopping to discuss this contention, or to pass any opinion upon it, it may be admitted for the purposes of this case to be correct, and yet the question remains whether there were any acts or circumstances brought home to the knowledge of Copelin & Co. which would justify them in purchasing this check upon Jackson's indorsement without making inquiry as to his authority. It is true that Copelin had been to Jackson, Mich., and had seen Jackson in charge of appellant's mill, and had seen him engaged in the management of appellant's business. There is also evidence to the effect that he saw Jackson opening mail, and giving orders to the men in the employ of the company, and countersigning some of the checks drawn by the company upon its bank

to pay for material. But under the authorities above referred to and quoted from, none of these acts were sufficient to justify Copelin & Co. in inferring that Jackson had authority to indorse the check.

The check was drawn by J. Herz & Son upon the appellee bank. In the present case it is not denied that Herz & Son had funds enough in the appellee bank to pay the check so drawn by them to the order of appellant. The doctrine of this court is that, "when the check of a depositor is presented to the banker, if the deposit is sufficient to pay the check, it is an absolute appropriation of the amount of the check to the holder; and that the contract implied by law between the banker and his depositor for the benefit of whoever may become the holder of the check is one upon which such holder can maintain an action." Gage Hotel Co. v. Union Nat. Bank, 171 Ill. 531, 49 N. E. 420, 39 L. R. A. 479, 63 Am. St. Rep. 270. In the present case it appears that the check was certified by the appellee. By such act of certification appellee assumed the duty to pay the check only to the appellant, the payee therein, or upon appellant's genuine indorsement. Having direct notice of Jackson's agency by his signature upon the back of the check as superintendent, appellee was bound to take notice of the limitations upon his authority. When it certified the check, it entered into an absolute undertaking to pay it when presented at any time within the time fixed by the statute of limitations, and was, therefore, estopped to deny that it possessed sufficient funds of the drawer to pay the check. Bank v. Jones, 137 Ill. 634, 27 N. E. 533, 12 L. R. A. 492, 31 Am. St. Rep. 403; Middlesex County Bank v. Hirsch Bros. Veneer Mfg. Co., 24 N. Y. St. Rep. 297, 4 N. Y. Supp. 385; Smith v. Association, 12 Daly, 304; Dowden v. Cryder, 55 N. J. Law, 329, 26 Atl. 941. mere fact that Jackson was in possession of the check which he thus obtained from J. Herz & Son did not authorize him to transfer it to Copelin & Co., or authorize Copelin & Co. to purchase it from him upon his indorsement of appellant's name thereon; nor was any authority thereby conferred upon the appellee bank to pay the same. In Dodge v. Bank, supra, it was held that "the rightful possession of a check made payable to the order of a particular person confers no authority on the drawee to pay the same to the person having such possession, without the genuine indorsement of the payee," and that, if the drawee relies upon false representations as to identity, for which neither the drawer nor payee is responsible, he makes payment to a wrong person at his peril.

The

In Doubleday v. Kress, supra, it was held that the possession by an assumed agent of a promissory note payable to the order of the payee, and not indorsed by him, is not alone sufficient evidence of his authority to authorize a payment thereof to him. In Smith v.

Association, supra, it was held that a party making a special contract with the general manager of a corporation knows that he is making it with a mere agent, and he is bound at his peril to ascertain the agent's real authority. In Atkinson v. Manufacturing Co., supra, it was held that proof that a person was an agent of an incorporated company, and had charge of the business of said company at a certain place, was not alone sufficient to show that such person was authorized to draw a note or bill in behalf of the company, and that the acceptance of a draft by the treasurer of an incorporated company, without evidence of any authority in him to perform such acts, did not thereby render the company liable thereon. In Smith v. Gibson, supra, it was held that the authority of an agent to buy and sell goods for his principal did not confer a power to bind him by drawing or indorsing bills and notes, and that no agency will be implied in such cases unless there is some evidence of recognition by the principal in the particular case or in similar cases. In Railway Equipment & Publication Co. v. Lincoln Nat. Bank, supra, which was an action brought to recover for the conversion of certain checks belonging to the plaintiff, it was held that the fact that the agent there was held out as the manager of the business of the corporation in no way authorized the conclusion that he had the right to bind the corporation by his signature to commercial paper. In New York Iron Mine v. First Nat. Bank of Negaunee, supra, it was held that a general agent, without being specially empowered so to do, had no authority to make promissory notes in the name of his principal, and that where a general agent in Michigan was accustomed to indorse the company's paper for collection or discount, and to draw on the treasurer in New York for the current needs of his corporation, and his drafts were duly paid, this could not imply authority in the agent to make promissory notes in the name of the corporation. In Vanbibber v. Bank, supra, it appeared that the drawers of a check were accustomed to have deposits of funds at the bank, and to draw occasionally against the same; and it was there said: "The drawers of this check requested the bank to pay its amount to plaintiffs or order. The bank had no right to pay it to any other person. It has, however, paid it upon a forged indorsement, and the amount of the check must be considered to be still in the bank, subject to the rights of plaintiffs. * If there was a negligence anywhere, it was upon the part of the bank. Their duty to their depositor required them to be satisfied that the indorsement of the check was that of the payees. * It

*

is also established that the collector was never authorized by the plaintiffs to indorse any check drawn to the order of the firm, or any check." In Graham v. Institution, supra, which was a case similar in its facts to the

case at bar, it was said by the court: "This suit is brought to recover the amount of two checks, which were drawn on the defendant by third parties in favor of the plaintiffs, and made payable to their order. The drawers delivered the checks to the plaintiffs' collecting agent, one Dixon, in settlement of certain bills which the latter had in charge for collection, being bills due from the drawer of the checks to the plaintiffs. Dixon indorsed the defendant's firm name upon the checks, and presented nem at the bank, and drew the money upon them, which he seems to have appropriated to his own use, without rendering any account thereof to the plaintiffs. * • The question presented is purely one of agency. Was Dixon the plaintiffs' agent to indorse negotiable paper given in settlement of debts due to his employers? He was their agent to adjust such claims and receive the amounts due upon them, and to do those subordinate and incidental things usual and customary in the accomplishment of the main purpose had in view, to wit, the collection. The main purpose had been accomplished when he had received the checks payable to his principals. His duties as a collector ceased at that point. His next duty was to account with his employers for the proceeds of his collections, and turn over the checks to them, to be disposed of as they might judge proper. The indorsement of the checks was no necessary incident of the collection of the accounts." In Jackson v. Bank, 92 Tenn. 154, 20 S. W. 820, 18 L. R. A. 663, 36 Am. St. Rep. 81, which is also a case similar in its facts to the case at bar, the supreme court of Tennessee says: "No authority will be implied from an express authority. Whatever powers are strictly neces sary to the effectual exercise of the express powers will be conceded to the agent by implication. In order, therefore, that the authority to make or draw, accept and indorse, commercial paper as the agent of another may be implied from some other express authority, it must be shown to be strictly necessary to the complete execution of the express power. The rule is strictly enforced that the authority to execute and indorse bills and notes as agent will not be implied from an express authority to transact some other business, unless it is absolutely necessary to the exercise of express authority. Tied. Com. Paper, § 77. Possession of a check, payable to order, by one claiming to be agent of the payee, is not prima facie proof of authority to demand payment in the name of the true owner. Id. § 312. A bank is obliged by custom to honor checks payable to order, and pays them at its peril to any other than the person to whose order they are made payable. Id. § 431. It must see that the check is paid to the payee therein named upon his genuine indorsement, or it will remain responsible. Pickle v. Muse, 88 Tenn. 380, 12 S. W. 919. An authority to receive checks in lieu of cash in payment of

bills placed in the hands of an agent for collection does not authorize the agent to indorse and collect the checks. Graham v. Institution, 46 Mo. 186; 1 Wait, Act. & Def. p. 284; 1 Daniel, Neg. inst. § 294. The indorsement of the check was not a necessary incident to the collection of the accounts. Graham v. Institution, 46 Mo. 186. It fol lows that a drummer or commercial traveler, employed to sell and take orders for goods, to collect accounts, and receive money and checks payable to the order of his principal, is not, by implication, authorized to indorse such principal's name to such checks. No equitable considerations can be invoked to soften seeming hardships in the enforcement of the laws and rules fixing liability on persons handling commercial paper. These laws are the growth of ages, and the result of experience, having their origin in necessity. The inflexibility of these rules may occasionally make them seem severe, but in them is found general security." See, also, Renting Co. v. Hutchinson, 25 Ill. App. 476; Commercial Nat. Bank v. Lincoln Fuel Co., 67 Ill. App. 166; Beattie v. Bank, 174 Ill. 571, 51 N. E. 602, 43 L. R. A. 654, 66 Am. St. Rep. 318 A person dealing with an agent takes the risk as to the extent of his authority, and is bound to inquire into his authority. Reynolds v. Ferree, 86 Ill. 570, and authorities last above referred to. The rulings of the court below upon the admission and exclusion of evidence, and its action in giving and refusing instructions, were in opposition to the views herein before expressed. We are therefore of the opinion that the trial court erred in this respect.

2. It was held by the court below, in the instructions given by it to the jury, that the burden of proving the authority of Jackson to indorse the name of the appellant upon the check in question was upon the appellant. In our opinion, this holding was wrong. The appellant asked the court to Instruct the jury that "the burden of showing the authority of a stranger to a check to indorse the same for the payee is upon the drawee, if he would escape liability to pay over again to the payee," and this instruction was refused by the court. It should have been given. Where one attempts to take advantage of the act of an agent, it is for him to show the authority of that agent. The appellee relied for its defense upon the proposition that C. A. Jackson had authority, to indorse appellant's name upon the check, and therefore the burden was upon the appellee to prove such authority. In Hardesty v. Newby, 28 Mo. 567, 75 Am. Dec. 137, it was held that, where a matured negotiable promissory note is delivered by the payee, without indorsement, to an agent for collection, the possession of the note by the latter will not raise a presumption that he has authority to assign the same, and the burden of proving an assignment by authority of the payee rests upon the party claiming under

such alleged assignment. In Hays v. Lynn, 7 Watts, 525, it was said by the court: "A party who avails himself of the act of an agent must, in order to charge the principal, prove the authority under which the agent acted. The burthen of the proof lies on him to establish the agency and the extent of it." In Morgan v. Bank, 1 Duer, 438, it was said by the court: "When a bill or check is payable to order, to justify the application to its payment of the funds of the drawer it must be proved that the required order was in fact given,-in other words, it must be proved that the indorsement was genuine,-and the burden of this proof rests upon the person or bank upon whom the bill or check is drawn." In Bank v. Tuck, 101 Ga. 104, 28 S. E. 168, it was held that the maker of a negotiable promissory note pays the amount due thereon to any person other than the holder at his own risk; and a defense to an action on such note, setting up payment to one authorized by the holder to collect for him, casts upon the defendant the burden of showing, not only that he has paid the money, but that he has made payment to a person authorized by the holder to receive it, or else that it actually reached the holder's hands. In Commercial Nat. Bank v. Lincoln Fuel Co., 67 Ill. App. 166, it was said: "But the mere fact that Gordon & Co. had possession of the check affords no presumption of their authority to indorse it, nor would mere authority possessed by Gordon & Co. to accept checks from customers of appellee for coal sold give to them either express or implied authority to indorse such checks by the name of appellee. And if the drawee of such a check pays the same upon an indorsement that is not genuine, or is not authorized, it does so at its peril, and the burden of showing the authority of the stranger to the check to indorse the same for the payee would be upon the drawee, if it would escape liability to pay it over again to the payee." Jackson v. Bank, supra.

The judgment of the appellate court and the judgment of the superior court of Cook county are reversed, and the cause is remanded to the superior court of Cook county for further proceedings in accordance with the views herein expressed. Reversed and remanded.

199 Ill. 126)

CHICAGO & E. I. R. CO. v. RANDOLPH. (Supreme Court of Illinois. Oct. 25, 1902.) RAILROADS-INJURY AT CROSSING-CONTRIBUTORY NEGLIGENCE-DAMAGES NURSINGSERVICES OF WIFE EVIDENCE -INSTRUCTIONS-FAILURE TO OBJECT-APPEAL-RIGHT OF REVIEW-NONEXPERTS-ASSUMED RISK. 1. An engine, which struck plaintiff while crossing a railroad track, had been engaged in switching for several minutes across the crossing, which it had obstructed. Plaintiff waited

to cross until the engine had been put in rapid motion away from the crossing, when, believing

the switching had been finished there, he attempted to cross. His view was obstructed by a freight car, and without warning the engine was suddenly reversed, and was moved rapidly backward over the crossing, striking plaintiff and causing injuries. Held, that plaintiff was only required to proceed with ordinary care, and that he was not guilty of contributory negligence as a matter of law.

2. Where, on the trial of an action for injuries, defendant made no objection to evidence of the value of services of plaintiff's wife in nursing him, it could not object thereto for the first time on appeal.

3. Where, in an action for injuries, defendant made no objection to evidence of services of plaintiff's wife in nursing him, and of the value thereof, and made no request that the court should instruct the jury that plaintiff could not recover for such services, it could not object for the first time on appeal to an instruction authorizing the jury to include such services as an element of damages, if they should find for the plaintiff.

4. In an action for injuries, evidence of nonexpert witnesses that plaintiff was "suffering,' was "nervous," "in misery," "weak," "feeble," "in distress," "sore," "in pain," "nauseated," etc., was proper.

5. Where plaintiff was injured at a railroad crossing, an instruction that, if plaintiff attempted to cross the track under circumstances specified in the instruction, then "the plaintiff assumed the risks," was properly refused, since, as plaintiff bore no contractual relation to defendant company, the doctrine of assumed risk did not apply to him.

Appeal from appellate court, Third district.

Action by Francis F. Randolph against the Chicago & Eastern Illinois Railroad Company. From a judgment in favor of plaintiff, affirmed by the appellate court (101 IIL App. 121), defendant appeals. Affirmed.

H. M. Steely and W. H. Lyford, for appellant. Isaac A. Love and W. R. Jewell, Jr., for appellee.

BOGGS, J. The judgment in the sum of $1,500, awarded the appellee against the appellant company in the circuit court of Vermilion county as damages for personal injuries sustained by the appellee through the alleged negligence of the appellant company, was affirmed by the appellate court for the Third district, and the record thereof is before this court by the further appeal of the railway company. The appellee, while endeavoring to pass over the tracks of the appellant company at a public crossing in Germantown in a buggy, was run upon by the tender of a locomotive, which servants of the appellant company were moving with a backward motion over and across the public crossing.

Counsel for the appellant company conIcede the evidence was such as to present to the jury as a question of fact whether the company was guilty of negligence as charged in the declaration. Counsel, however, contend it appeared in the evidence, without dispute, that the appellee, in going upon and attempting to cross the tracks of the railroad company, deliberately calculated upon the