deceased crossing the track when at such distance that he could have avoided collision by using promptly the appliances at his command for checking the train, the case is properly submitted to the jury. Pope v. Kansas City Cable R. Co., 99 Mo. 400; 12 S. W. Rep. 890.

6. Crossing track in front of approaching car-contributory negligence.-A boy attempted to run across a street-car track in front of a moving car, fell down, and was run over. When the boy fell, the car was not more than twenty feet distant. The place was not a crossing, and the driver applied the brake as soon as the boy fell. Held, that the street-car company was not responsible for the accident. Fenton v. Second Ave. R. Co., 126 N. Y. 625; 26 N. E. Rep. 967.

In an action against a street-railway company for personal injuries, plaintiff, a boy of 12 years, testified that he saw defendant's car coming, and, thinking he would have time, attempted to cross before it. The only suggestion of negligence was plaintiff's claim that the car-driver accelerated its speed as he was crossing. Held, that it was error to submit the question of defendant's negligence to the jury. Manaban v. Steinway, etc., R. Co., 125 N. Y. 760; 26 N. E. Rep. 736.

7. Injury to one walking along track-failure to step aside sufficiently on account of banks of snow.—A foot passenger, who, in order to avoid the deep snow in the rest of the street, walks along the street-car track from which the snow has been cleared, cannot recover for being run over by a car approaching from the rear, when it appears that she could have seen the car for a quarter of a mile when she got on the track, and that the bells could be heard for forty rods, but that she did not notice the car until it was nearly upon her, and then failed to step far enough aside on account of the high banks of snow, and was knocked down by the rear part of the car. Warner v. People's Street R. Co., 141 Penn. St. 615; 21 Atl. Rep. 737.

8. Injury to infant child on track-negligence of company.—In an action against a street railway company for negligently causing the death of plaintiff's child, fourteen months of age, which had strayed upon the track, a witness testified that he was a passenger on the car at the time of the accident; that, as the car was moving rapidly, and the driver urging his mule, he saw deceased, who was standing near his mother's door, suddenly drop to his knees, and crawl rapidly towards the track; that the driver did not see the child, and continued to urge his mule; that witness called out to him to look out for the child, but he did not seem to heed; that he again warned him, when he seemed to become aware of the danger, and applied the brakes, but too late to avoid the accident. Held, that an instruction to find for defendant was properly refused. San Antonio Street R. Co. v. Caillonette, 79 Tex. 341; 15 S. W. Rep. 390.

9. Same-imputed negligence of parent.-In such action it appeared that plaintiff was in her store, waiting on a customer, having left the child near the front door, and that in a few moments she heard a cry in the street, and saw the child under the car. She testified that it had never been out there before. Held, that an instruction on contributory negligence was properly refused. Ibid.

TRYON V. WHITE & CORBIN CO.

(Supreme Court of Errors of Connecticut, June 30, 1892.)

1. CORPORATIONS. LIABILITY FOR EXTRA WORK FURNISHED WITH KNOWLEDGE OF DIRECTORS. Where extra work is done by a contractor for a corporation, with knowledge of a majority of the directors, and upon the assurance of one of them that the company will pay for it, and upon the after-assurance that there had been a meeting at which the company had in fact agreed to pay, this is sufficient, regardless of whether the director had any authority to make such assurance, or even whether he told the truth about the meeting, to raise an obligation on the part of the company to pay for such work as it receives the benefit of.

A. P. Hyde and C. Phelps, for appellant. W. Johnson, for appellee.

C. H. Briscoe and J.

ROBINSON, J. The defendant is a corporation with three stockholders, White, Corbin, and Prescott, and these three stockholders make up the board of direction. The plaintiff is a mason and builder, and was engaged as a sub-contractor to do certain work and furnish certain materials in his line in the alteration of the factory buildings of the defendant, and in the erection of a picker house for the defendant; the entire job having been let to one Arnold as the principal contractor. The plaintiff, in doing the work and furnishing the materials essential to his part of the work, claimed that he furnished extra labor and extra materials, for which he was entitled to extra compensation, and this suit was brought by him against the defendant to recover such extra compensation. It was tried to the jury, and a verdict was returned for the plaintiff to recover $1,317 and costs.

The

The defendant has appealed to this court for claimed errors in the admission of testimony and in the charge of the court. defendant sets up 10 reasons of appeal, but the second and third subdivisions of the first reason of appeal are the most noticeable, and to my mind the most serious errors assigned in the case. They are those which are claimed to have arisen in the admission against the defendant's objection of the declarations of Corbin and Arnold to Tryon touching the matter of the claimed extra work. Mr. Corbin was one of the directors of the defendant corporation, and it appears, had taken some part in the matter of arranging

the location of the picker house hereinafter referred to, and was claimed to be in fact the particular officer who made the last change in its location. Mr. Tryon was permitted by the court to testify that, after he found that the excavation necessary for a firm foundation for the picker house in its changed location required a greater depth than was shown by the plan, he went to see Mr. Prescott, one of the other directors, who was also the treasurer and general manager of the company, about this matter, and informed him that, in view of this change, very much more stone work would be required and a larger amount of stock would be necessary to complete the work, and that he should expect more pay; but that Mr. Prescott refused to pay for extras; and that he, Tryon, thereupon informed Prescott that he should be obliged to stop the work, and that he could not give the company that amount of extra work, and that Prescott thereupon told him that he could stop work, and that he, Prescott, would not pay him. for any extras. That directly after this Tryon went to see Corbin, and told him how the matter stood, and what Prescott had said; and Tryon was allowed, against objection, to testify that Corbin made reply to him that, if the facts were as stated by him, - if there was extra work, he ought to have pay for it. That they were intending to have a meeting of the directors of the company at noon that day, and he would then bring the matter up, and would send word by Arnold, the principal contractor, to him, Tryon, of the result; and that Corbin further said that he did not want the work stopped, and then and there told him to go ahead, and the company would pay. The plaintiff, Tryon, was also permitted, against objection, to testify that, after having this conversation with Corbin, and at the hour named, Arnold went to the office of the defendant, and returned from that place to Tryon, and stated to him that the company would pay him for the extra work, and that he was to go ahead. All this was denied by the defendant, but whether it is true or false is not the question in this case. The jury had the right and the power to find it to be true. The only question is, was the testimony admissible in any view of the case, and did it legitimately and properly tend to establish any obligation on the part of this company to pay for this extra work and material?

Supposing it to be true that Corbin did have this talk with

Tryon, and did tell Tryon that the directors were to have a meeting that day at noon, and that he, as one of those directors in that meeting, would bring up the matter of this claimed extra work and extra pay, and that he would send word to him by Arnold of the result; and suppose Arnold did in fact go to the company's office at the hour named, and did in fact come to Tryon from that office on that day and hour and say to him: "The company will pay you for the extra work. You are to go ahead,"-supposing all this to be true, are there not other facts and circumstances in this case which, taken in connection with the above, would create some kind of an obligation on the part of the defendant to pay the plaintiff for such extra work and extra material? Is there not a view that can justly and properly be taken of this case that makes this testimony entirely admissible? Suppose the trial judge had rejected this testimony, and the plaintiff had come here claiming error in its rejection, how could this court have justified such rejection? Could we say that in no aspect, and for none of the purposes of this case, was this testimony admissible? Let us keep this also in mind as we review the situation.

Now, after this talk with Corbin, and after Arnold had delivered this communication, Tryon goes forward, and completes the work, and the company refuses to pay on the ground that it owes no obligation to him. They say that no debt was created, and that this testimony should not have been admitted, because Corbin had no authority to bind the company to pay Tryon, and because what Arnold said was merely hearsay. Should the company, under all circumstances, be permitted to avail itself of this claim, and can it justly say that no obligation on its part to pay Tryon has arisen out of all the facts? Suppose Corbin, instead of making the communication through Arnold, had himself made it directly to Tryon, would not Tryon have had every reason to believe that Corbin was telling him the truth as to the action of the company? Would he have had no right to rely upon such a statement, coming from such a source, or should it be refused the place of a factor in this case, because there was no evidence of any express authority to Corbin to bind the company? A majority of the directors, at least, had full knowledge that Tryon claimed to be doing extra work, and that, if he did it, he VOL. VII-2

should expect extra compensation. He had told both Prescott and Corbin this, and they saw him from day to day doing this work ; in fact, all the directors from time to time saw him going forward with it. The work was in fact extra work, and the company today retains the benefit of it. Now, is there nothing, in all this that ought to close the mouth of this company? Can a director, acting in the manner that Corbin did, and professing to communicate to Tryon the action of the company, persuade Tryon to expend his work and materials upon the company's property, and thus give the company the benefit of them, without all these circumstances becoming important and vital factors of the company's liability for the reasonable worth of such expenditures? Can the company say that "one of our directors did, indeed, deceive Tryon;" that "he misrepresented the facts to him, and induced him to do what he would not otherwise have done, and our company has obtained the resulting pecuniary benefits, and we have them in our pockets, and intend to keep them there, because Corbin's statements were not true, and because our company did not in fact make any such order as Corbin reported to Tryon. We intend to keep our advantage. We intend to keep Tryon's money, materials, and labor, notwithstanding every member of our board of direction saw Tryon going on all the time precisely as if he understood and supposed that the company was to make him good for these expenditures as extras, and notwithstanding the fact that he told the majority of the directors, Prescott and Corbin, that he would not go on unless he was to be paid for them as extras, and notwithstanding it does not appear that Tryon ever said to either of them, or to any of the directors or agents of the company, at any time, that he had changed his intention in that regard." Is this a just and equitable position for this company to take? Was there not enough in all this at least to put these directors and this company upon an inquiry, if they did not in fact intend and never had intended or agreed to treat this work and these materials as extras? They all saw them being furnished; they were in fact extras; they were expenditures which the company knew Arnold was making no claim upon it for, but which the company knew Tryon had said he should regard as extras, and which he should not furnish unless the company was willing to pay him for them. as extras. The company and its directors saw Tryon from day to