This is a suit for damages by Delaney against the railroad company for failure to permit him to carry out a contract which it had made with him to load upon cars at Hartford a quantity of dirt from the Bolen Darnell Coal Company’s mine, suited for ballasting. The plaintiff recovered, and the railroad company appeals, and complains of the refusal of the court to give two instructions which, in effect, went to the authority of the roadmaster to make the contract sued upon. It is also contended that there is no evidence to authorize the finding that the roadmaster had authority to make the alleged contract.
The answer of the appellant to a second amended complaint alleged a contract existing between the appellee and the railroad company for the loading of the aforesaid dirt, the terms of which differed from that alleged by the appellee, but it set" forth a contract between itself and the appellee covering the subject-matter of the disputed contract. In other words, it admitted a contract as to the leading of this dirt by the appellee, but claimed that the terms, extent and conditions of the same were different from those contended for by the appellee. And in effect that is the evidence of the appellant. It put its defense upon a contract made by its roadmaster with appellee,- but alleged different terms from those which the appellee claims, and asserted a contract to remove some dirt from this particular pile.
In view of this state of the pleadings and the evidence on behalf of the appellant, it can not complain that the court did not submit the question of the authority of the roadmaster to make the contract to the jury. •
Judgment affirmed.