7. Negligence.

Principal and Agent. Master and Servant. - In an action for damages against a gas company for negligence, it appeared that the defendant employed a gang of men, and the plaintiff among them, to dig a trench in the street for the purpose of examining one of their gas-pipes; that these men were under the control, supervision, and direction of the superintendent or foreman of the gas company, who hired the men, and that the defendant paid them; that in doing the work the superintendent misdirected the workmen, and, after the trench was dug, ordered them to undermine the street in such a way as to make the work dangerous; that the plaintiff was examining the pipe when the earth which had been undermined fell upon him and broke his leg; and it was held that a nonsuit was incorrectly ordered, and that a new trial must be granted, as the question whether the work was negligently done was for the jury, and that the gas company were responsible for the negligent acts of the superintendent.

Devine v. Tarrytown & Irvington Un. Gas-Light Co., 29 N. Y. Supreme Ct. 26; affirmed, 32 N. Y. Supreme Ct. 231.

8. Estoppel. - Admission of Agent. A book-keeper and collector is not such an agent of a gas company as to make his statements about the location of their gas-pipes binding upon the gas company, even though other parties, relying upon his statements, have incurred expense and laid iron rails over the true position of the pipes.

Davenport Central Railway Co. v. Davenport Gas-Light Co., 43 Iowa, 301 (1876).

See NOTICE, 2.

Representations of Agent. See ESTOPPEL, 1.

Evidence of Agent. See EVIDENCE, 1, 26, 27; SUPPLY OF GAS, 1, 4; NEGLIGENCE, I., II., III.

II.

AUTHORITY OF OFFICERS.

9. Admission of Agent. Mechanic's Lien. Authority of President. In an action to enforce a mechanic's lien for mate

-

rials, it appeared that the president of the gas company purchased the goods, and they were used in the construction of the gas-works. The defendants denied the authority of the president to make the purchase, because the directors had not given him any authority; but it was held that the gas company were liable, as the acts of one claiming to act as agent bind the principal if known to and not disapproved by him; and it appeared that the goods sued for had been knowingly used in the gas-works: and it was further held that the admission of the president of a gas company, that certain goods were purchased for and used by it, may be put in evidence in an action for the value of the goods.

Brown v. La Crosse City Gas-Light & Coke Co., 21 Wis. 51 (1866).

10. Notice to Agent. Sale by President. On a bill in equity by a widow to recover her dower in real estate conveyed by the executors of the will to the president of the defendant company, who conveyed the property to the gas company, it was held that the gas company did not thereby have notice of any defect in the title, and that the rule that notice of facts to an agent was constructive notice thereof to the principal himself, had no application to a case of sale to a corporation by its president of property purchased by him in his private capacity, and in such a transaction the officer, in making the sale and conveyance, stands as a stranger to the company; that "where an officer of a corporation is dealing with them in his own interest opposed to theirs, he must be held not to represent them in the transaction so as to charge them with the knowledge he may possess, but which he has not communicated to them, and which they do not otherwise possess, of facts derogatory to the title he conveys," and that the bill must be dismissed.

Barnes v. Trenton Gas-Light Co., 27 N. J. Eq. 33 (1876).

11. Waiver by Secretary. Application for Gas. -The superintendent of a gas company, who acts for the company in its relations with its customers, has authority to waive a regulation of the company requiring applications for a supply of gas to be

in writing; and in an action for damages for refusal to supply the plaintiff with gas, the company cannot set up as a defence the fact that such application was not in writing, when its superintendent had, by agreeing that the plaintiff should have gas after he had signed the rules and regulations, waived the regulation that the application should be in writing.

Shepherd v. Milwaukee Gas-Light Co., 11 Wis. 234 (1860).

Principal and Agent.

12. Application for Gas. Where a gas company requires that an application for a supply of gas shall be made by the customer in writing, the general agent and manager of the business of a merchant residing in Buffalo, but having an extensive mercantile business in Milwaukee, has implied power to authorize one of the clerks to make the demand for the merchant for a supply of gas from the Milwaukee gas company, and such demand shall be as effectual as if made by the non-resident merchant himself.

Shepherd v. Milwaukee Gas-Light Co., 11 Wis. 234 (1860).

See CHARTER, 1; DIRECTORS, 2, 5; PRESIDENT, POWERS OF; STOCK OF GAS COMPANIES, 5, 6, 7; BONDS, 3.

III.

LIABILITY OF AGENT IN ACTION OF TORT.

13. Trover. Statute. Justification. In an action of trover for distraining the plaintiff's goods, the gas company justified under a warrant of a justice, under a statute by which a gas company, for rent unpaid, could obtain a warrant and levy on the property of a debtor, and alleged that the warrant was issued on the complaint of their collector, and that he, by virtue of it and under their authority, seized the plaintiff's goods for the purpose of levying a sum owing by him to them, and duly demanded according to the act; but it was held that this was a justification to the clerk or officer, but not to the company.

Painter v. Liverpool Oil Gas Co., 3 Ad. & E. 433 (1836).

See NUISANCE, 10.

ANNUITY.

See DAMAGES, 2; DIRECTORS, 5; NEGLIGENCE, 5.

APPLICATION FOR GAS.

See AGENCY, 11; SUPPLY OF GAS.

Price. - Mandamus.

APPOINTMENT.

See AGENCY, 4.

ARBITRATION.

Equity. Under its charter and a special contract, a gas company was obliged to sell to a city its gasworks, at a certain time and at a price to be fixed by arbitrators to be chosen by the city and the company in equal numbers, with an umpire, if necessary, to be chosen by the arbitrators. When the time fixed for the sale arrived, the city appointed its arbitrators and duly notified the company, but they refused to appoint any. A suit was brought by the city to compel the company to sell at a price fixed by the commissioners appointed by the court, and it was held that the action would not lie; that it was an equitable proceeding to enforce the specific performance of a contract; that equity would grant no relief when the price of such a sale remains to be fixed by arbitrators appointed by the parties; that this rule is still stronger when the obligation to sell arises from a statute; and that the proper form of action was by mandamus to compel the company to appoint arbitrators.

City of St. Louis v. St. Louis Gas-Light Co., 70 Mo. 69 (1879).

See CHARTER, 1; NUISANCE, 18.

ASSESSMENT.

See TAXATION, 3; STOCK OF GAS COMPANIES; GAS FIXTURES;

MANDAMUS, 5.

ASSIGNMENT.

See DIRECTOR, 8.

may maintain assumpsit for gas supplied to the occupiers of a wharf, and it is not necessary in such a case that there should have been any contract by deed executed by the company. Both of two partners are liable for gas furnished, if they have both had the use of it, although the lease of the wharf upon which it is supplied is granted only to one of them.

City of London Gas-Light Co. v. Nicholls, 2 Car. & P. 365, N. P. (1826).

2. Action.

Parol Contract.

Goods Sold and Delivered.

- A corporation, as a gas company, may be sued in indebitatus assumpsit for goods sold and delivered, though the contract be not under seal, and is a parol contract executed. The contract may be implied or express, as in cases of assumpsit against an individual. The implication may arise from the object of the incorporation, as compared with the subject-matter of the contract, as in assumpsit against an incorporated gas company for the price of gas-meters sold and delivered to the value of £15. In the case of corporations aggregate, as in that of individuals, if goods be taken on the terms of their being returned if not approved, and they be retained an unreasonable time, the corporation so taking and retaining may be sued for goods sold and delivered.

Beverly v. Lincoln Gas-Light & Coke Co., 6 Ad. & E. 829 (1837).

3. Promise not under Seal. Executory Contract. A corporation created for the purpose of supplying gas may maintain assumpsit for a breach of a contract by the defendant to accept

gas from year to year at a certain rate per annum, the consideration being alleged to be the promise of the company to supply it on those terms. Such promise by the company, though not under seal, is valid, and a good consideration.

It makes no difference as to the right of a corporation to sue on a contract entered into by them without seal, whether the contract be executed or executory, or whether the promises be express or implied.

Church v. Imperial Gas-Light & Coke Co., 6 Ad. & E. 846 (1838.)